c.  a 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE  EULE  AGAINST  PERPETUITIES. 


THE 


RULE  AGAINST  PERPETUITIES, 


BY 

JOHN  CHIPMAN 

EOYALL   PBOFE8SOB   OF    LAW,   EMERITUS,    IN   HARVARD   UNIVERSITY 


THIRD  EDITION. 


BOSTON: 

LITTLE,  BEOWN,  AND  COMPANY. 
1915. 


Copyright,  1886, 1906, 1915, 
BY  JOHN  CHIPMAN  GKAT. 


T 


V 

1 

£ 


PREFACE  TO  THE  THIRD  EDITION. 


ALTHOUGH  only  eight  years  have  passed  since  the  publica- 
tion of  the  second  edition,  about  three  hundred  and  eighty 
new  cases  on  the  Rule  against  Perpetuities  (not  including 
those  in  New  York)  have  been  decided  during  that  time, 
many  of  them  of  considerable  interest ;  and  my  views  have 
altered  or  developed  on  several  points.  Notwithstanding 
an  increase  in  the  average  contents  of  a  page,  there  has  been 
a  material  addition  to  the  number  of  pages  of  the  text  and  of 
the  Appendix. 

If  this  had  been  the  first  edition  of  this  work,  I  should  un- 
doubtedly have  adopted  a  more  consecutive  and  compact  ar- 
rangement in  several  respects  than  it  now  exhibits.  It  has 
seemed  to  me,  however,  to  be  advantageous  to  the  reader  to 
retain  in  the  present  edition  a  form  which  shows  the  develop- 
ment not  only  of  the  law  but  of  the  author's  views  during  a 
period  of  twenty-eight  years. 

I  have  to  thank  my  learned  friend,  William  Rodman  Fay, 
Esquire,  of  the  Boston  bar,  for  verifying  the  citations  of  au- 
thorities and  seeing  the  book  through  the  press,  and  my  son 
Roland  Gray  for  assistance  in  revising  the  text. 

BOSTON,  July,  1914. 


729920 


PREFACE  TO  THE  SECOND  EDITION. 

DURING  the  twenty  years  that  have  elapsed  since  the 
publication  of  the  first  edition,  many  important  cases  on 
the  Rule  against  Perpetuities  have  been  decided.  About  a 
hundred  pages  have  been  added  to  the  text  and  fifty  to  the 
Appendix. 

I  have  to  give  my  best  thanks  to  my  learned  friends  Charles 
L.  Barlow,  Esquire,  and  John  G.  Palfrey,  Esquire,  of  the  Bos- 
ton bar, —  the  former  for  verifying  the  citations  of  authorities, 
the  latter  for  seeing  the  book  through  the  press. 

BOSTON,  January,  1906. 


PREFACE   TO   THE  FIRST  EDITION. 


I  HAVE  long  thought  that  in  the  present  state  of  legal 
learning  a  chief  need  is  for  books  on  special  topics,  chosen 
with  a  view,  not  to  their  utility  as  the  subjects  of  convenient 
manuals,  but  to  their  place  and  importance  in  the  general 
system  of  the  law.  When  such  books  have  been  written,  it 
will  then,  for  the  first  time,  become  possible  to  treat  fully  the 
great  departments  of  the  law,  or  even  to  construct  a  corpus 
juris. 

Such  a  book  should  deal  with  the  whole  of  its  subject,  its 
history,  its  relation  to  other  parts  of  the  law,  its  present  con- 
dition, the  general  principles  which  have  been  evolved  and 
the  errors  which  have  been  eliminated  in  its  development, 
and  the  defects  which  still  mar  its  logical  symmetry,  or,  what 
is  of  vastly  greater  moment,  lessen  its  value  as  a  guide  to 
conduct. 

A  treatise  of  this  nature  I  have  tried  to  write  on  the  legal 
doctrine  governing  the  creation  of  future  interests  in  prop- 
erty, commonly  known  as  the  Rule  against  Perpetuities. 

The  doctrines  derived  from  the  feudal  law,  which  so 
closely  limited  the  creation  and  transfer  of  future  estates, 
have  passed  or  are  fast  passing  away.  Any  reasons  for  their 
existence  have  gone,  and  under  the  joint  action  of  the  Leg- 
islatures and  Courts  they  have  themselves  almost  disap- 
peared. Of  all  that  forest  of  learning  there  remains  here 
and  there  only  a  stump  over  which  an  unlucky  testator  may 
fitumble.  But  the  Rule  against  Perpetuities  is  in  full  vigor; 


Till  PBEFACE. 

where  the  Legislature  has  interfered,  it  has  been  to  increase 
its  stringency.  Indeed,  the  Rule  is  substantially,  at  the  pres- 
ent day,  the  law  of  future  interests. 

Though  I  have  been  desirous  to  keep  as  closely  to  the  sub- 
ject as  possible,  it  seemed  almost  indispensable  to  show  how 
the  law  of  future  interests  has  been  thus  simplified  and  re- 
duced to  the  Rule  against  Perpetuities.  Chapter  II.,  which 
treats  of  this,  cost  more  labor  than  any  other  in  the  book. 

On  the  other  hand,  questions  of  construction  have  been 
rigorously  excluded,  unless  where,  as  in  Chapter  XIX.,  the 
Rule  against  Perpetuities  is  concerned  in  their  solution. 
There  is  an  enormous  number  of  cases  reported  where  an 
interest  did  or  did  not  violate  the  Rule,  according  as  one  or 
another  construction  was  adopted.  But  the  adoption  of  one 
construction  rather  than  another  was  not  affected  by  the  ex- 
istence of  the  Rule,  and  when  a  construction  had  been  adopted 
there  was  no  doubt  whether  or  not  the  Rule  applied  to  it. 
The  consideration  of  such  cases  belongs  to  a  treatise  on  In- 
terpretation. It  has  always  seemed  to  me  a  blemish  in  Mr. 
Lewis's  admirable  work  that  so  large  a  part  of  it  is  devoted 
to  these  questions. 

The  learned  reader  will  observe  that  some  parts  of  the 
subject  are  treated  at  much  greater  length  than  others.  The 
guide  in  determining  the  room  to  be  allotted  to  each  question 
has  been  its  comparative  difficulty.  On  points  which  have 
raised  serious  doubts  in  the  minds  of  others,  or  in  my  own 
mind,  the  authorities  and  arguments  have  been  fully  given  ; 
but  although  I  hope  the  book  may  be  of  service  not  only  in 
practice  but  to  students,  it  is  not  written  in  usum  tironum^ 
and  undisputed  doctrines  have  been  stated  with  as  much 
brevity  as  is  consistent  with  accuracy. 

The  ambiguity  in  the  meaning  of  terms,  which  is  perhaps 
the  chief  reproach  of  our  law,  has  worked  great  harm  with 
the  matters  here  considered.  The  Rule  against  Perpetuities 
should  have  been  called  the  Rule  against  Remoteness.  It  is. 


PEEFACB.  II 

aimed  at  the  control  of  future  interests;  it  has  nothing  to  do, 
save  incidentally,  with  present  interests.  But  its  name  is  a 
constant  temptation  to  treat  it  as  aimed  against  restraints  on 
the  alienation  of  present  interests.1  Hence  frequent  lapses  into 
error,  from  which  the  courts  have  recovered  themselves  slowly 
and  painfully ;  and  hence  also  statutes,  like  those  of  New 
York,  whose  interpretation  has  cost,  and  will  cost,  a  subsidy.2 
If  this  book  has  any  merit,  it  is  in  the  more  or  less  successful 
attempt  to  free  the  subject  from  this  source  of  confusion  and 
mistake.3 

In  many  legal  discussions  there  is,  in  the  last  resort,  noth- 
ing to  say  but  that  one  judge  or  writer  thinks  one  way,  and 
another  writer  or  judge  thinks  another  way.  There  is  no 
exact  standard  to  which  appeal  can  be  made.  In  questions 
of  remoteness  this  is  not  so  ;  there  is  for  them  a  definite  rec- 
ognized rule:  if  a  decision  agrees  with  it,  it  is  right;  if  it 
does  not  agree  with  it,  it  is  wrong.  In  no  part  of  the  law  is 
the  reasoning  so  mathematical  in  its  character ;  none  has  so 
small  a  human  element. 

A  degree  of  dogmatism,  therefore,  may  be  permitted  here 
which  would  be  unbecoming  in  other  branches  of  the  law. 
If  the  answer  to  a  problem  does  not  square  with  the  multipli- 
cation table  one  may  call  it  wrong,  although  it  be  the  work 
of  Sir  Isaac  Newton ;  and  so  if  a  decision  conflicts  with  the 
Rule  against  Perpetuities,  one  may  call  it  wrong,  however 
learned  and  able  the  court  that  has  pronounced  it. 

That  I  have  done  all  my  own  sums  correctly,  I  do  not  ven- 
ture to  hope.  There  is  something  in  the  subject  which  seems 

1  See  §  118 a,  and  the  other  sections  there  cited. 

2  See  §§  747-750. 

*  When  I  began  to  collect  the  authorities,  I  did  not  clearly  apprehend 
that  the  Rule  against  Perpetuities  had  no  direct  connection  with  restraints 
on  alienation,  and  I  intended  to  devote  a  chapter  to  these  restraints ;  but 
as  I  went  on  I  saw  that  such  a  chapter  would  be  out  of  place,  and  therefore 
concluded  to  treat  the  subject  in  a  separate  essay,  —  Restraints  on  the 
Alienation  of  Property,  Boston,  1883,  (2d  ed.)  1895. 


X  PEEFACE. 

to  facilitate  error.  Perhaps  it  is  because  the  mode  of  rea- 
soning is  unlike  that  with  which  lawyers  are  most  familiar. 
The  study  and  practice  of  the  Rule  against  Perpetuities  is 
indeed  a  constant  school  of  modesty.  A  long  list  might  be 
formed  of  the  demonstrable  blunders  with  regard  to  its  ques- 
tions made  by  eminent  men,  blunders  which  they  themselves 
have  been  sometimes  the  first  to  acknowledge  ;  and  there  are 
few  lawyers  of  any  practice  in  drawing  wills  and  settlements 
who  have  not  at  some  time  either  fallen  into  the  net  which  the 
Rule  spreads  for  the  unwary,  or  at  least  shuddered  to  think 
how  narrowly  they  have  escaped  it. 

Finally,  I  must  acknowledge  my  great  obligations  to  Mr. 
Lewis's  classical  treatise.  He  is  prolix,  and  his  prolixity 
makes  him  occasionally  obscure ;  but  no  writer  on  the  Com- 
mon Law  excels  him  in  acuteness  and  candor.  I  have  never 
consulted  him  but  with  renewed  respect.  On  a  few  points  I 
have  ventured  to  disagree  with  him,  but  always  with  diffi- 
dence. To  Mr.  Marsden's  excellent  treatise  I  also  take 
pleasure  in  recognizing  my  indebtedness.  From  him,  too,  I 
have  at  times  differed ;  but  much  oftener  I  have  been  forti- 
fied in  my  conclusions  on  doubtful  questions  by  finding  that 
they  agreed  with  his. 

With  two  such  books  on  our  shelves  I  feel  I  owe  an  apol- 
ogy for  adding  another  to  the  overgrown  literature  of  the  law. 
My  excuse  must  be  that  it  is  thirty-six  years  since  Mr.  Lewis 
published  the  Supplement  to  his  book,  and  that  Mr.  Marsden's 
plan  excludes  consideration  of  the  history  of  the  Rule  ;  but 
chiefly  that  neither  of  them  deals  with  the  American  cases. 

I  have  to  thank  Professor  E.  W.  Gurney  for  kindly  revising 
the  sections  in  the  Appendix  on  the  Roman  Law. 

J.  C.  G. 

BOSTON,  January,  1886. 


TABLE   OF  CONTENTS. 


CHAPTER  I. 

SECTION 

INTRODUCTION  .  1-4 


CHAPTER  II. 
FUTURE  INTERESTS 5-98 

I.  Real  Estate 6-70 

A.  Lands  of  Freehold  Tenure 6-69 

1.  Common  Law 6-17  a 

(1.)  Remainders  and  Reversions    ....  8-11 

(2.)  Rights  of  Entry 12 

(3.)  Possibilities  of  Reverter 13-14 

(4.)  Curtesy  and  Dower 15 

(5.)  Rights  in  Land  of  Others     ....    16,  17 
(6.)  Escheat 17  a 

2.  Statute  De  Donis 18,  19 

3.  Statute  Quia  Emptores     20-51  a 

Tenure  and  the  Statute  Quia  Emptores  in 

the  United  States 22-28 

Remainders  and  Reversions     ....      29 

Rights  of  Entry      30 

Possibilities  of  Reverter 31-42 

Curtesy  and  Dower 42  a 

Rights  in  Land  of  Others 43 

Escheat,  and  Dissolution  of  Corpora- 
tions .  44-51a 


XU  TABLE   OF   CONTENTS. 

SECTION 

4.  Statutes  of  Uses  and  Wills 52-66 

(1.)  Bargain  and  Sale  of  Freehold  in  fu- 

turo 56,  57 

(2.)  Contingent  Use  after  Estate  for 

Years 58-60 

(3.)  Bargain  and  Sale  to  Person  not  in 

esse 61-65 

5.  Later  Legislation 67-68  a 

6.  Equitable  Estates 69 

B.  Lands  of  Copyhold  Tenure 70 

II.  Personal  Property 71-97 

A.  Chattels  Real 71-76 

B.  Chattels  Personal 77-97 

English  Law     77-87 

American  Law 88-97 

Wills 88-90  a 

Deeds 91-97 

HI.  Summary 98 


CHAPTER  III. 
VESTED  AND  CONTINGENT  INTERESTS 99-118 

I.  Real  Estate 100-116 

Remainders 100-112  a 

Reversions 113-113  b 

Other  Future  Interests     114 

Escheat 115 

Curtesy  and  Dower 115  a 

Equitable  Interests 116 

II.  Personal  Property 117-117  b 


Secondary  meanings  of  the  term  "  vested  " 118 

CHAPTER  IV. 
POSTPONEMENT  OP  ENJOYMENT 118  a-121  / 


TABLE   OF   CONTENTS.  Xlll 


CHAPTER  V. 

SECTION 

ORIGIN  AND  HISTORY  OP  THE  RULE  AGAINST  PERPETUITIES 

123-200  a 

1.  No  Question  of  Remoteness  in  Early  Times  —  Possibil- 

ity on  a  Possibility 123-134 

2.  Introduction  of  Conditional  Limitations     ....     135-139 

3.  Meaning  of  "Perpetuity" 140-141  / 

4.  Conditional  Limitations  at  first  held  Destructible  .  142-147 

5.  Executory  Devises  of  Terms  introduced 148-152 

6.  First  Suggestions  at  the  Bar  of  the  Rule  against  Per- 

petuities       153-158 

7.  Slow  Judicial  Recognition  of  the  Doctrine  of  Remote- 

ness       159-168 

8.  The  Rule  against  Perpetuities  established  ....    169,  170 

9.  Extension  of  the  Rule  to  cover  the  Minority  of  a 

Grantee  or  Devisee 171-175 

10.  Extension  of  the  Rule  to  cover  Terms  in  Gross    .     176-185 

11.  Extensions  of  the  Rule  not  to  be  justified  on  Principle  186-188 

12.  Any  Number  of  Lives  in  esse  allowed 189,  190 

13.  The  Connection  of  the  Rule  against  Perpetuities  with 

the  invalidity  of  Remainders  for  Life  to  Successive 
Generations 191-199 

14.  The  Rule  against  Perpetuities  in  America 200 


CHAPTER  VI. 
THE  RULE  AGAINST  PERPETUITIES  AND  ITS  COROLLARIES  .    201-267 

1.  Nature  of  Interest 202-204 

2.  Vested  Interests  not  subject  to  the  Rule     ....     205-210 

3.  Nature  of  Contingency 211-213 

4.  The  Contingency  must  happen  within  Limits     .     214-215  a 

5.  Lives  in  Being 216-219  6 

6.  Period  of  Gestation     220-222 

7.  Term  of  Twenty-one  Years 223,  224 

8.  Limitations  of  an  Estate  for  Life  or  not  exceeding 

Twenty-one  Years 225-229 

8  o.  Covenants  to  renew  Leases  .  230-230  6 


TABLE   OP   CONTENTS. 

SBCTIOK 

9.  Time  runs  from  Testator's  Death    .........    231 

10.  Enough  if  Interest  begins  within  the  Required  Limits  232-246 

11.  Effect  of  Interests  being  too  Remote    ......     247-258 

(1.)  Effect  on  Prior  Limitations     .......     247-250 

(2.)  Effect  on  Subsequent  Limitations  .....     251-258 

12.  Conflict  of  Laws  ...............  258  a-267 


CHAPTER  VII. 
INTERESTS,  THOUGH  ALIENABLE,  MAT  BE  TOO  REMOTE    .    268-278  d 

CHAPTER  VIII. 
INTERESTS  SUBJECT  TO  THE  RULE  AGAINST  PERPETUITIES     279-330  c 

I.  Legal  Interests    ...............     283-321  6 

A.  Real  Estate  ...............     283-318 

(1.)  Reversions  and  Vested  Remainders     .   .   .     283 
(2.)  Contingent  Remainders      ......  284-298  i 

(3.)  Rights  of  Entry   .........     299-311  a 

(4.)  Possibilities  of  Reverter     ......    312,  313 

(5.)  Curtesy  and  Dower     .........     313  a 

(6.)  Rights  in  Land  of  Others  ......     314-316 

(7.)  Escheat     ..............     316  a 

(8.)  Conditional  Limitations      ........    317 

Copyholds   ..............     318 

B.  Personal  Property  ...........     319-321  b 

II.  Equitable  Interests    ..............     322-328 

III.  Contracts     ...........  -.   .....      329-330  c 

CHAPTER  IX. 
SEPARABLE  LIMITATIONS    ...............    331-368 

CHAPTER  X. 
LIMITATIONS  TO  CLASSES  ..............     369-398  6 

Independent  Gifts   ...............     389-395  a 

CHAPTER  XI. 
LIMITATIONS  TO  A  SERIES  399-410  e 


TABLE   OF   CONTENTS.  XV 


CHAPTER  XII. 

SBCTION 

TRUSTS 411-422  a 


CHAPTER  XIII. 
MODIFYING  AND  QUALIFYING  CLAUSES 423-442  a 

CHAPTER  XIV. 
LIMITATIONS  AFTER  ESTATES  TAIL     443-472 

CHAPTER  XV. 

POWERS 473-561  g 

1.  If  a  Power  can  be  exercised  at  a  Time  beyond  the  Limits 

of  the  Rule  against  Perpetuities  it  is  bad    .    .  474  a-509  « 

2.  A  Power  which  cannot  be  exercised  beyond  the  Limits 

of  the  Rule  is  not  rendered  bad  by  the  fact  that  within 
its  Terms  an  Appointment  could  be  made  which 
would  be  too  Remote  510 

3.  The  Remoteness  of  an  Appointment  depends  on  its 

Distance  from  the  Creation  and  not  from  the  Exer- 
cise of  the  Power  514-530  d 

4.  Consequences  of  an  Appointment  being  too  Remote 

531-540  a 

5.  Election 541-5610 

CHAPTER  XVI. 

MORTGAGES 562-571  a 

Rights  at  Law 562,  563 

Rights  in  Equity 564-571  a 

CHAPTER  XVII. 
CUSTOMARY  RIGHTS 572-588 

CHAPTER  XVIII. 
CHARITABLE  TRUSTS  .  589-628 


XVI  TABLE   OF   CONTENTS. 

CHAPTER  XIX. 

SECTION 

CONSTRUCTION     629-670 

Cypres 643-670 

CHAPTER  XX. 
ACCUMULATIONS  .  671-679  a 


APPENDIX. 

A.  CHARITIES  FOR  DEFINITE  PERSONS     680-685 

NOTE.  —  The  Attorney  General  as  a  Party  to  Suits 
for  enforcing  Charities. 

B.  THE  THELLUSSON  ACT 686-727 

C.  LEGISLATIVE  CHANGES  IN  THE  UNITED  STATES    .   .   .     728-752 

D.  FOREIGN  LAW 753-773 

I.  Scotch  Law 753-760 

II.  Roman  Law 761,  762 

III.  French  Law 763-765 

IV.  Law  of  Louisiana 766-772 

V.  Law  of  Texas 773 

E.  DETERMINABLE  FEES 774-788 

F.  FUTURE  INTERESTS  IN  PERSONAL  PROPERTY     ....     789-856 

G.  GENERAL  AND  PARTICULAR  INTENT 857-893 

H.  GIFTS  TO  INDEFINITE  PERSONS  FOR  NON-CHARITABLE  PUR- 
POSES       894-909  a 

I.  CONVERSION  AND  THE  RULE  AGAINST  PERPETUITIES  .  910-917 
J.  CONTINGENT  REMAINDER  OR  EXECUTORY  LIMITATION  918-930 
K.  WHITBY  v.  MITCHELL 931-947 

L.  GENERAL  TESTAMENTARY  POWERS  AND  THE  RULE  AGAINST 

PERPETUITIES 948-969 

M.  VESTED  REMAINDERS  AND  THE  RULE  AGAINST  PERPETUI- 
TIES 970-974 


INDEX Page  665 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ABE  TO  THE  SECTIONS. 


A. 

Section 

Abbiss  r.  Burney  194, 325, 326, 451, 930 

Abbot  T>.  Weekly  576 

Abbott,  Re         252,  258,  533,  535,  556 

Abbott  v.  Holway  67 

Ackerman  v.  Shelp  584,  585 

v.  Vreeland  352 

Adams  v.  Adams  250,  646,  648 

r.  Broughton  91 

t.  Chaplin  14 

v.  Savage  68,  60 

».  Valentine  282 

v.  Van  Alstyne  586  a 

Adelman's  Will  751 

Adie  r.  Cornwell  88 

Adye  v.  Smith  621,  894 

Aikin  v.  Albany  &c.  R.  R.  Co.         282 

v.  Smith  91 

Albee  v.  Cummings  88 

Albert  v.  Albert    245  c,  245  e,  392,  522, 

561  d,  865 

Albright  v .  Cartwright  585 

Alexander  v.  Alexander  255 

Alfred  v.  Marks  739 

Allason's  Trusts  215  a 

Allen's  Case  137 

Allen  v.  Stevens  685,  609 

v.  White  245  c 

Allison  v.  Allison  108 

Allyn  v.  Mather  647,  662,  664 

Almy  v.  Jones  607 

Alverson  v.  Randall  108 

American  Academy  v.  Harvard  Col- 
lege 678 
Amner  v.  Luddington  151 
Amory  v.  A.  G.                                  590 
Amos,    Re                                            896 
Amos  v.  Amos                                      744 
Anderson  v.  Kilborn                           264 
v.  Pike                                         771 
Andrew  v.  Andrew                              231 
Andrews  v.  Andrews                           607 
v.  Lincoln            242,  246,  629,  674 
v.  Partington                                639 
c.  Rice  107, 108,  248,  385,  739,  740 
Angell  v.  Angall                                  396 


Section 

Angerstein,  Re  365 

Angus  v.  Noble  898,  909 

Anon,  (cited  9  Hen.  VI.  23,  24)       134 

(2  Abb.  N.  C.  56)  308 

(2  And.  197)  205 

(3  Atk.  277)  681 

(5  Atk.  277)  896 

(Bro.  Ab.  Chat.  pi.  23)  149 

(Bro.  Ab.  Feoff,  al  uses  pi.  30)   137 

(Bro.  Ab.  Feoff,  al  uses  pi.  60)  136 

(Carter  208)  14 

(13  Co.  48)  137 

(Dyer  7  a)  149,  153 

(Dyer  74  b,  pi.  18)  149 

(Dyer  124  a)  138 

(Dyer  277  b)  150 

(Dyer  300  b)  33 

(Fitz.  Ab.  Formedon,  65)  14 

(Freeman  Ch.  137)  86 

(Freeman  Ch.  206)  84 

(2  Hayw.  161)  852 

(Jenk.  5)  34 

(Jenk.  328)  137 

(3  Leon.  195;  4  Leon.  192)        151 

(March  106)  83,  827 

(Moore  608)  137 

(Owen  33)  825 

(Sav.  11)  577 

(Sel.  Cas.  in  Ch.  69)  685 

Anthony  v.  Anthony  739 

Appleby,  Re  509  i 

Apprice  v.  Flower  163 

Archer's  Case  145 

Archer  v.  Dowsing  215  a 

v.  Jacobs  107,  110,  113  a 

Ardley  v.  Guardians  of  the  Poor    279, 

316 

Annitage  v.  Coates  434 

Armstrong  v.  Armstrong  351 

v.  Barber     121  c,  121  /,  121  i,  214  d 
v.  Reeves  898,  902 

v.  West  256 

Arnaud  v.  Tarbe  769 

Arnold  v.  Congreve  389,  424 

Arthur  v.  Cole  71  b,  816 

Asher  v.  Whitlock  33(3) 


XV111 


TABLE   OF   CASES   CITED. 


Section 

Ashforth,  Re    133,  277,  288,  298  t,  933 

Ashhurst's  Estate  722 

Ashhurst  r.  Given  721 

Ashley  v.  Ashley  207,  232 

Ashton  Charity,  Re  690 

Ashton  v.  Ashton  200 
Ashuelot  Nat.  Bank  t>.  Keene     12,  282 

Ashurst  v.  Ashurst  742 

Aspden  v.  Seddon  280,  329 

Asylum  v.  Lefebre  590,  593 

Atkinson  v.  Hutchinson  633 
Atlantic  Trust  Co.  v.  Woodbridge 

Canal  Co.  570,  752 

Attenborough  v.  Attenborough       346, 

349,  480,  510 

A.  G.  v.  Archbishop  of  York  590 

v.  Barker  685 

v.  Baxter  608 

v.  Berryman  608 

•o.  Bishop  of  Chester  607 

v.  Bishop  of  Oxford  605 

v.  Boucherett  685 

v.  Bowyer  607 

v.  Brettingham  690,  685 

v.  Buckland  683 

v.  Bucknall  683,  685 

v.  Buller  590 

v.  Butler  678,  685 

v.  Carlisle  685 

v.  Clapham  685 

v.  Clark  685 

v.  Clergy  Society  51 

v.  Cock  681 

v.  Craven  607 

v.  Crispin  110 

v.  Cross  690 
v.  Cummins             31,  33(11),  302 

v.  Dove  685 

v.  Downing  607 

v.  Dublin  681 

».  Fellows  685 

v.  Gill  231,  594 

v.  Goddard  681 

v.  Goulding  605 

v.  Gower  51 

v.  Green  685 

t».  Greenhill  230 

v.  Haberdashers'  Co.  685 

».  Heath  685 

v.  Heelis  685 

».  Herrick  608 

t.  Hungerford  690 

v.  Ironmongers'  Co.  685 

v.  Jameson  329 

t>.  Jolly  605 

v.  Kerr  690 

t.  Magdalen  College  685 

T.  Mathias  579 

v.  Matthews  608 

v.  Mayor  of  Dublin  685 

r.  Mayor  of  Galway  685 

v.  Merrimack  Manf .  Co.  282 

t.  Nethercoat  690 

t.  Newark  690,  685 

e.  Northumberland  683,  685 

».  Peacock  608 


Section 

A.  G.  r.  Plumptree  685 

v.  Poulden  678,  697,  704 

t>.  Price  683,  685 

r>.  Pyle  33,  603  i 

v.  St.  Cross  Hospital  685 

o.  Sands  43 

v.  Sherborne  Grammar  School  685 
v.  Sidney  Sussex  College  684 

v.  Smart  685 

v.  Southmolton  282 

v.  South  Sea  Co.  590 

v.  Syderfen  608 

v.  Vivian  685 

v.  Wallace  350 

v.  Warren  690,  685 

v.  Wax  Chandlers'  Co.  282 

v.  Webster  627 

v.  Whitchurch  605 

v.  Whorwood  685 

v.  Wright  685 

v.  Wyggeston's  Hospital  685 

Attwater  v.  Att water  282 

Atwater  v.  Russell  121  j,  610,  751 

Auld's  Succession  770,  771 

Austin  v.  Cambridgeport  Parish         12, 
305,  306 

Avern  v.  Lloyd  232,  270,  276,  277 

Avery  c.  Avery  121  c 

v.  N.  Y.  Central  R.  R.  Co.       282 
Ayling  -o.  Kramer  282 

Ayres  v.  Falkland  33,  776 


B. 


Backhouse  o.  Bellingham  161,  361 
Bacon  v.  Proctor  400,  407  a,  415,  676 

c.  Robertson  51 

Bad  River  Lumbering  Co.  v.  Kaiser 

307 

Bagshaw  v.  Spencer  37,  415 

Bailey  v.  Seabrook  14 

Baillie,  Re  693,  603  i 

Baker's  Succession  770 

Baker  v.  Brereman  576,  577 

v.  Stuart  242,  671,  688 

Baldwin  v.  Joyner  93 

t>.  Rogers  110,  388 

Balm  v.  Balm  639 

Baltzell  c.  Church  Home  245  c  (7) 
Bandon  r.  Moreland  449,  450,  480 
Bankes  v.  Holme  452 

v.  Le  Despencer  418 

Banks  v.  Haskie  230 

v.  Marksberry  88,  91 

Baptist  Ass.  v.  Hart  616 

Barber  v.  Crawford  14 

v.  Pittsburgh  Ac.  R.  Co.  447, 

478,  609  q 

Barger's  Appeal  722 

Barker,  Re  379,  603  c,  641 

Barker  v.  Dayton  23 

Barksdale  t>.  Gamage  14 

Barnardiston  r.  Carter  415 

Barnes  v.  Allen  118 

p.  Patch  408 


TABLE    OF   CASES    CITED. 


XIX 


Section 

Barnitz  r.  Casey  224 

Barnum  t>.  Baltimore  611 

v.  Barnum    232,  245  c,  245 /,  245  k, 

245  I,  508 

Barr  v.  Gardner  113  a 

Barrett  v.  Barrett  249  c 

v.  Buck  702,  713 

Barrie  v.  Smith  282,  307,  309 

Barrington  v.  LiddelJ         686,  710,  711 

».  Tristram  639 

Bartlett  v.  Patton  88,  852 

v.  Seara        476  a,  510,  623  c,  526, 

739,  950 

Barton's  Case  146 

Barton  v.  Thaw  275  a 

Barwick's  Case  70 

Bascom  v.  Albertson  609 

v.  Nichols  609 

Bassil  v.  Lister  693 

Bateman  v.  Hotchkin  676 

Bates  v.  Bates  898 

t).  Brown  23 

v.  Gillett  103 

v.  Spooner  206 

Baxter's  Trusts  121 

Beale  v.  Symonds  205 

Beales'  Settlement,  Re  661  / 

Bean  v.  Bloom  579 

Beard  v.  Westcott     184,  232,  252-257, 

654 

Beatty  v.  Kurtz  685 

Beau  v.  Bloom  579 

Beaulieu  v.  Ternoir  768 

Beaumont  v.  Sowter  675 

Beauregard's  Succession  768 

Becker  v.  Chester  200,  751,  916 

Bective  v.  Hodgson  687,  690 

Bedford  Charity,  Re  685 

Bedford's  (Earl  of)  Case  58 

Bedon  v.  Bedon  14 

Beech  v.  St.  Vincent  711 

Beers  v.  Narramore  739 

Belcher  v.  Burnett  118 

Belding  ».  Parsons  113  a 

Belfield  v.  Booth      205  6,  214  &-214  d, 
370,  624,  739 

Bell  v.  Bell  389,  521,  537 

v.  Scammon  57 

v.  Wardell  576 

Belt's  Estates  215  a 

Bence,  Re  340  b 

Bender  v.  Bender  218 

Bengough  v.  Eldridge  185 

Bennet  v.  Lewknor  153,  154,  156 

Bennett  v.  Bennett  449 

v.  Chapin  120 

v.  Cook  96 

v.  Humane  Impartial  Soc.     245  c, 

282 

v.  Lowe  232 

v.  Methodist  Episcopal  Church 

611 

v.  Morris  113  a 

Benson  v.  Cozine  771 

Benson  v.  Hodson  449 

Bentham  t>.  Smith  626  c 


Section 

Bentinck  v.  Portland  382,  389 

Beresford  c.  Jervia  898 

Bernal  v.  Bernal  683,  685 

Bethea  v.  Bethea  14,  455 

Betty  v.  Moore  91,  95-97,  847 

Beurhaus  v.  Cole  751 

Sevan's  Trusts,  Re  121,  372,  633 

Bewick,  Re  205,  214,  413,  509  h 

Beyfus  v.  Lawley  526  c 

Bible  Soc.  v.  Pendleton  267,  619 

Biddle's  Appeal  679 

Biddle  v.  Perkins  492 

Bigelow  v.  Cady  237  c,  509  p 

Biggs  v.  Peacock  490,  509  c 

Bigley  v.  Watson  11 

Billing  v.  Welch  282 

Bingham  v.  Weiderwax  51 

Binney  v.  Hull  586  a 

Birley  v.  Birley  530  a 

Birmingham    Canal    Co.    v.    Cart- 
wright  270,  274,  275,  330 
Biscoe  v.  Biscoe  228,  848 
Bishop  of  Sodor  and  Man  v.  Derby     14 
Bishop  of  Winchester  v.  Prior  of 

St.  John  of  Jerusalem  46 

Black  v.  Elkhorn  Mining  Co.  42 

».  Ray  852 

Blackbourn  v.  Lassels  136 

Blackburn  v.  McCallum  121  / 

Blacket  v.  Lamb       542,  545-547,  549, 

550,  552  b 

Blackmore  v.  Boardman  230 

Blagrove  v.  Hancock  325,  374 

Blake  v.  Blake  308 

Blakeman  v.  Miller  752 

v.  Sears  739 

Blakemore's  Settlement  374 

Blamford  v.  Blamford        125,  133,  288 
Blanchard  v.  Blanchard  108 

v.  Detroit  &c.  R.  R.  Co.  282 

Bland  v.  Lipscombe  579 

v.  Williams  121 

Blandford  v.  Thackerell  389 

Blease  v.  Burgh  121,  639  a 

Blesard,  Doe  d.,  v.  Simpson          14,  70 
Blew,  Re  232,  439 

Blewett  v.  Tregonning  579 

Blight  v.  Hartnoll     248,  374,  385,  476, 

476  a 

Blomfield,  Doe  d.,  v.  Eyre         70,  783, 
784,  786,  788 

Blundell  v.  Catterall  577 

Blunt's  Trusts  40  (2  a),  603  i 

Board    of    Chosen    Freeholders    v. 

Buck  40  a 

Board  of  Education  v.  Edson 
Boatman  v.  Boatman  107 

Bohon  v.  Bohon  11 

Boiling  v.  Petersburg  39,  307 

Bolls  v.  Winton  62,  146 

Bond's  Case  578 

Bond  v.  Moore  113  a 

Bonnell  ».  Bonnell  112 

Banner  v.  Latham  93 

Booth  v.  Terrell  852 

Boraston's  Case  138 


TABLE   OF   CASES    CITED. 


Section 

Boreham  p.  Bignall  121,  374 

Borland's  Trustee  r.  Steel  Brothers 

Ac.  Co.  329 

Borland  P.  Marshall  68 

Bostock's  Case  137 

Boteler  p.  Bristow  676,  677,  679 

Boucher  r.  Antram  84,  161 

Boughton  v.  Boughton     374,  389,  674, 

688 

p.  James     209,  232,  374,  389,  645, 
647,  651,  674,  688,  877 
Bouknight  P.  Brown  108 

Bould  v.  Wynston  146 

Boulton's  Case  138 

Bourne,  Re  924 

Bourne  r>.  Buckton  704,  711 

Bowen,  Re  593,  594,  603  i,  631 

Bowen  v.  Hackney  108 

Bowles,  Re  258,  295,  321,  480 

Bowlin  v.  R.  I.  Hosp.  Trust  Co.  215  a 
Bowling  P.  Dobyna  88 

Bowyer  v.  West  374 

Boyce  v.  Banning  489,  499 

Boyd's  Estate  622,  526,  963 

Boyd,  Re  428,  437 

Boyd  v.  Allen  490 

Boydell  p.  Golightly  362 

Bracebridge's  Case  137,  144 

Bracebridge  v.  Cook  144 

Brackenbury  p.  Gibbons  922,  923 

Bradford  v.  Griffin  62,  232,  398  a 

Bradley  v.  Mosby  91 

Bradshaw  P.  Bradshaw       561  e,  561  /, 

561  g 

v.  Jackman  896,  898,  901 

Brandenburgh  v.  Thorndike          214  a, 

214  c 

Brandon  v.  Woodthorpe  215  a 

Brannigan  p.  Murphy  898 

Brasher  v.  Marsh  740 

Braswell  v.  Morehead  88,  848 

Brattle  Square  Church  v.  Grant         40, 
247,  269,  305,  308,  310  a,  593 
Bray  v.  Bree  477,  624,  957 

p.  Hammersley  477 

Brent's  Case  137,  142 

Brent  v.  Gilbert  131,  137,  142 

Brett  v.  Sawbridge  362 

Brewer  r.  Brewer  259 

p.  Hardy  57 

t.  Penniman  259 

Brewster  v.  McCall  88 

Brice  v.  All  Saints  Mem.  Chapel      282, 

590,  593 

Bridges  P.  Pleasants  620 

Bridgnorth  v.  Collins  686,  690 

Briggs  P.  Oxford        468,  486,  497,  498, 

604,  676 

Brigham  v.  Brigham  Hospital  607,  678 
Brink  v.  Richtmyer  577 

Bristol  r.  Bristol  621 

Bristow  P.  Boothby       462,  476,  476  a, 
494,  960 

p.  Warde  647,  651 

Bronson  p.  Coffin  686  a 

t.  Strouse  397,  683 


Section 

Brooke  P.  Turner  656 

Brooks's  Estate  721 

Brooks  v.  Belfast      232, 603 1,  605,  678 
Broome  p.  King  88 

Brouncker  r.  Bagot  76 

Brown,  Matter  of  107 

Brown's  Settlement  490,  498,  499 

Brown  &  Sibley,  Contract  of    269,  522 
Brown  v.  Brown  291 

v.  Columbia  Finance  Co.  232,  522, 
737 

p.  Dale  896 

v.  Higgs  231 

p.  Kelsey  852 

v.  Meeting  St.  Soc.  590 

p.  Pratt  93 

p.  Pringle  215  o 

v.  Reeder  245  /,  245  A; 

v.  Williams  108 

v.  Williamson  716,  717,  721 

v.  Wright  353 

Doe  d.,  P.  Holme  113  a 

Browne  t.  Hammond  110 

v.  King  894 

v.  Stoughton  466,  467,  468  a, 

471  a,  505,  688 

v.  Taylor  215  a 

v.  Warnock  215  a 

Brownfield's  Estate  852 

Brownlee  p.  Douslin  279 

Brubaker's  Appeal  718 

Brudenell  v.  Elwes  206,  232,  255, 

645,  646,  651,  877 

Brummet  v.  Barber  96 

Brunsden  p.  Woolredge  683 

Brush  v.  Beecher  230 

Bryan  v.  Bradley  65 

p.  Collins  691,  699 

Buchanan  v.  Harrison  206,  214 

Buck  v.  Lincoln  739 

v.  Walker  751 

Buckhurst  Peerage  13 

Buckland  v.  Papillon  230 

Buckle  v.  Bristow  894 

Buckler  v.  Harvy  17 

Buckley  v.  Simonds  61 

Buckton  P.  Hay  436,  441 

Buckworth  v.  Thirkell         14,  182,  197 
Budd,  Estate  of  752 

Budd  v.  Posey  848 

Bufford  P.  Holliman  773 

Buist  v.  Dawes  14 

Bull  v.  Bull  683 

v.  Pritchard  325,  326,  374 

Bullard  P.  Shirley  231 

Bulteel  r.  Plummer  631 

Bunch  P.  Nicks  67,  67,  95,  846 

Burges  P.  Burges       161,  166,  167,  168, 

361 

Burgess  P.  Wheate  51,  205 

Burgh  of  Ayr  p.  Shaw  700,  704 

Burke's  Succession  768  o 

Burke  p.  Burke  112,  899 

p.  Roper  612,  896 

Burleigh  p.  Clough  921 

Burley  p.  Evelyn  232,  252,  253 


TABLE   OF   CASES   CITED. 


XXI 


Burnett  t>.  Roberts 
Burt  v.  Sturt 
Burton's  Appeal 
Bute,  Re 
Bute  v.  Harman 
Butler  v.  Butler 

c.  Godley 

D.  Green 
Butt's  Case 
Buxton  v.  Kroeger 
Byers  v.  McCartney 


G. 


Section 
88 

704,  711 
590 
365 

121,  374 

633,  716 

94 

259,  265 
812 
108 
625 


Cadell  o.  Palmer       178,  184-186,  206, 
218,  222,  223 

Cain  ».  Watson          428,  672,  711,  714 

Caines  v.  Marley  91 

Caldwell  v.  Willis  249,  398,  409 

Callison  v.  Morris  108 

Cambridge  v.  Rous  348 

Camp  v.  Crocker  739 

v.  Land  570,  752 

Campbell,  Estate  of  752 

Campbell  v.  City  of  Kansas  603  i 

v.  Harding  227 

v.  Karvannanakoa  752 

v.  Leach  874 

Campbell's  Trustees  v.  Campbell 

697,  701 
Canal  Bridge  ».  Methodist  Religious 

Soc.  305 

Cannon  v.  Barry  746 

Caraher  v.  Lloyd  113  o 

Carbery  v.  Cox  605,  896 

Cardigan  v.  Armitage  34 

Carlypn  v.  Levering  688 

Carmichael  c.  Cannichael  107 

Came  v.  Long  896,  898,  899 

Carney  v.  Kain  39,  100,  118 

Carpenter  o.  Miller  619 

v.  Perkins  108,  633,  739 

Carr  v.  Atkinson  535 

v.  Bedford  683 

j>.  Erroll  365,  449 

v.  Ga.  R.  R.  40,  41 

Carroll  v.  Olmsted  23,  68 

Carroll  County  Academy  v.  Galla- 

tin  Academy  Co.  282 

Carson's  Appeal  717,  718 

Carson  v.  Blazer  586  a 

Carter's  Trustee  v.  Gettys  737 

Carter,  Re  120 

Carter  c.  Barnardiston  11,  415 

v.  Branson  307 

p.  Cropley  627 

v.  Doe  306 

v.  Spencer  88 

Carver  v.  Bowles     425,  433,  542,  547- 

549,  552,  552  b,  556 

v.  Jackson  110 

Carwardine  t>.  Carwardine  921 

Cary  v.  Abbot  608 

Case  v.  Drosier          456,  458,  469,  470 

Casgrain  v.  Hammond  751 


Cassidy  o.  Mason 
Castner  v.  Riegel 
Catchmay  r.  Nicholas 
Cater  v.  Balfour 
Catt  P.  Catt 
Cattell,  Re 


Section 
282 
586 

84,  828 
612 
2636 
699 


Cattlin  v.  Brown       231, 232,  294,  333, 
389,  391,  431,  631 

Cavarly's  Estate  752 

Cawthon  v.  Stearns  Culver  Lumber 

Co.  279 

Cecil's  Case  150 

Cecile  v.  Lacoste  770 

Chalfont  o.  Okes  166,  808 

Chamberlain  v.  Chamberlain  265 

».  Stearns  894 

Chamberlayne  v.  Brockett      606,  607, 

677 

Champernon's  Case  35 

Chance  ».  Chance  374 

Chandler  v.  Chandler  57,  67 

v.  Jamaica  Pond  Aqueduct         40 
Chaplin  v.  Chaplin  14 

Chapman  v.  Brown   197,  288,  633,  645 

v.  Cheney  40,  121  c,  249  d 

v.  Newell  736 

d.  Oliver  v.  Brown  133 

Chappel  v.  Brewster  19,  663 

Chase  v.  Stockett  611 

Chatfield  v.  Berchtoldt  259 

Chedington's  (Rector  of)  Case        125, 
133,  151,  169,  288 

Cheeseman  v.  Partridge  681 

Cherry  ».  Mott  605,  606 

Chesham,  Re  365,  366 

Chesham's  Settlement,  Re        365,  366 
Chester  v.  Painter  121  b,  639  aa 

Chesterfield  v.  Harris  579,  583 

Child  c.  Baylie  152-160,  168,  169, 

938,  940,  942,  943,  945,  947 
Chilcott  v.  Hart  147,  200 

Chilton  v.  London  579,  581 

Chisholm  v.  London  &  Western 

Trust  Co.  121  j 

v.  Starke  89 

Chism  v.  Keith  107 

Chitty  v.  Parker  685 

Cholmeley  v.  Humble  141  c 

Cholmley's  Case  125,  127 

Christ  Church  Inclosure  Act,  Re    583, 

682 
Christ's  Hospital  o.  A.  G.  685 

v.  Grainger  597-599,  603  h 

Christie  o.  Gosling     120,  365,  367,  633 

Christopher  Corbet's  Case          35,  780 

Chudleigh's  Case          58,  63,  134,  137, 

141  a,  141  d,  141  e,  143,  144, 

298  e,  929,  937 

Church  t>.  Kemble  425,  538,  543,  552  6 

v.  Young  39 

Church  Extension  v.  Smith  611 

Church  Patronage  Trust,  Re  627 

Churchill  v.  Churchill    428,  551,  552  b, 

553 

Cincinnati  v.  White  685 

Claflin  v.  Claflin         121  c,  121  /-121t 


XX11 


TABLE   OF   CASES   CITED. 


Section 

Clagett  c.  Worthmgton  848 

Clapp  v.  Stoughton  308 

p.  Wilder  282 

Clare  v.  Clare  361 

Clarges  v.  Albemarle  84,  828 

Clark's  Appeal  265 

Trusts,  Re  896,  898 

Clark  ».  Cox  108 

v.  Martin  282 

t>.  Platt  509 

v.  Taylor  605 

Clarke's  Appeal  259,  265 

Clarke,  Re  896,  898 

Clarke,  Doe  d.,  v.  Clarke  220 

Clayton  v.  Hallett  607 

Clements  ».  Leitrim  471  a 

Clergy  Society,  Re  607 

Cleveland  &c.  R.  Co.  v.  Coburn      279 

Clifford,  Re  896,  898 

Clou  tier  c.  Lecomte  769 

Clulow's  Trust  700,  703,  711 

Clutterbuck,  Re  686 

Cobb  v.  Davenport  584 

Coburn  v.  Harvey 

Cochrane's  Succession  768 

Cochrane  v.  Cochrane    467,  471  a,  505 

v.  Moore  78 

Cocks  v.  Manners  896,  898,  899 

Codman  v.  Brigham  607,  678 

Cody  v.  Staples  739 

Coe  v.  Washington  Mills          896,  897 

Coggins'  Appeal  108,  239,  375  a, 

523  c,  631,  865 

Estate  633 

Coit  v.  Comstock  214  d,  305,  311,  621, 

623,  624  a,  898 

Colchester,  Mayor  of,  v.  Brooke        51 

Cole  v.  Cole  770 

v.  Lee  751 

v.  Moore  151,  153 

t.  Sewell     133,  186,  287,  447,  449, 

490,  498,  921 

t>.  Society  107 

Coleman,  Estate  of  752 

Collier  v.  M'Bean  37,  40 

v.  Walters  37,  40,  780 

Collins  v.  Foley  476 

Collins  Manf.  Co.  r.  Marcy  307 

Collison  v.  Lettsom  274 

Colquhoun's     Trustees    v.     Col- 

quhoun  711 

Colquhoun  c.  Colquhoun's  Trustees 

694,  700 

Colston's  Hospital,  Re  590 

Colton  v.  Fox  231 

Colvin  r.  Nelson  769 

Comberbach,  Doe  d.,  r.  Perryn  flO 
Commercial  Bank  v.  Lockwood  51 
Commissioners  o.  De  Clifford  33,  337, 

596 
Commissioners  of  Rush  Co.  v. 

Dinwiddie  744 

Commissioners  of  Streets,  Re  215  a 
Commonwealth  v.  Naile  205 

Comport  ».  Austen  374 

Conduitt  v.  Soane  215  a 


Section 

Congregational  Society  v.  Stark  39,  307 
Conley  ».  Daughters  of  Republic  730 
Connecticut  Spiritualist  Camp- 
Meeting  Assoc.  v.  E.  Lyme  307 
Connecticut  Trust  Co. ».  Hollister  120 
Connelly  v.  O'Brien  107 
Conner  v.  Waring  37,  40 
Conolly  v.  M'Dennott  529 
Conrow's  Appeal  716,  722 
Constable  v.  Nicholson  579 
Cook  v.  Walker  68  a 
Cooke  v.  Bowen  110 
v.  Bowler  207  a 
v.  Cooke  428,  430  b,  530  d 
Coolidge  v.  Learned  585,  586  a,  587 
Coombe  v.  Hughes  700,  707 
Cooper's  Estate  236,  478,  509  o 
Cooper  v.  Cooper  91 
v.  Laroche  215  a,  437,  437  a,  441 
v.  Stuart  200,  279 
Coppard,  Re  641 
Corbet's  Case  141  c,  141  e 
Corbet's  (Christopher)  Case  35,  780 
Corbyn  v.  French  605 
Corle's  Case  898 
Cornelius  v.  Ivins  306 
Cornell  ».  Lamb  23 
Corpus  Christi  College  Case  129 
Coster  v.  Lorillard  107 
Cotton's  Trustee,  Re  490,  499 
Cotton  v.  Heath  162,  232 
Cotton,  Doe  d.,  v.  Stenlake  656 
Coulman,  Re  389,  510,  519,  522,  523. 
523  /,  537 

Coulson's  Trusts,  Re  509  b 

Coulter  v.  Robertson  51 

Countryman  v.  Deck  282 

Courtier  v.  Oram  277,  374,  428 

Courtelyou  v.  Van  Brundt  577 

Courtney  r>.  Keller  38,  306 

Coventry  v.  Coventry  120 

Cowan  v.  Milbourn  626 

Cowell  P.  Springs  Co.  305,  306 

Cox  v.  Harris  248 

v.  Parker  205 

r.  Button  366 

Cradock  ».  Owen  205 

Craig  v.  Stacey  114,  206,  445 

n.  Warner  113  a 

Craige's  Appeal  108 

Crane  v.  Hyde  Park  307 

Crapo  v.  Price  103 

Crawford  v.  Chapman  23 

r.  Lundy  499 

v.  Moses  228 

Crawley  v.  Crawley  687,  704,  708 

Crawshay,  Re  431,  530  b 

Crerar  v.  Williams  607 

Cresson  v.  Ferree  499 

Creswell  v.  Emberson  852 

Crew  r.  Pratt  752 

Crichton's  Settlement,  Re  522 

Crichton  Estate,  Re  232 

Cromek  c.  Lumb  374,  389 

Cromie    v.    Louisville    Orphans' 
Home  Soc.  607 


TABLE   OF   CASES   CITED. 


XX111 


Section 

Crompe  v.  Barrow  342 

Crosby  v.  Crosby  851 

Cross  v.  U.  S.  Trust  Co.  263  o 

Crosse  v.  Glennie  465,  674 

Croxall  v.  Shererd  107 

Croxton  v.  May  215  a 

Crozier  v.  Crozier  256 

Cruger  v.  Heyward  14 

v.  McLaury  309 

Cruwys  ».  Coleman  408 

Culbreth  v.  Smith         71  6,  88,  91,  816 
Cullimpre's  Trusts,  Re  894 

Gumming  v.  Reid  Memorial  Church 

607 

Cunliffe  v.  Brancker  631 

Cunningham  v.  Moody  112 

v.  Parker  282 

Cunynghame's  Settlement,  Re  435,  437 
Curran's  Appeal  678,  724 

Curran  v.  Philadelphia  Trust  Co. 

678,  724 

Curson  v.  Karvile  151 

Curtis  v.  Gardner  39 

v.  Button  266 

v.  Keesler  587 

t).  Lukin     120,  269,  277,  674,  675, 


Cutlar  v.  Spillar 


92 


D. 


D'Abbadie  o.  Bizoin    108,  206,  622,  531 

DaCosta,  Re  302 

Da  Costa  v.  De  Pas  608 

Dail  v.  Jones  93,  844 

Dailey  v.  New  Haven  621 

Dammert  v.  Osborn  263  a 

Damon  v.  Dickson  88 

Dana  v.  Sanborn  107 

Danahy  v.  Noonan  121  h 

Danforth  v.  Oshkosh         265,  751,  916 

Daniel  v.  Arkwright  530 

v.  Jacoway  40,  603  i 

y.  Stepney  303 

Daniels  v.  Eldredge  118 

v.  Wilson  40 

Darcy  v.  Kelley  684 

Dartmouth  College  v.  Woodward     590 

Dascomb  v.  Marston  607 

Dashiell  v.  Dashiell  88,  848 

Davall  v.  New  River  Co.  205 

Davenport  v.  Harris  374 

Daveron,  Re         247,  428,  509  /,  509  i 

Davidson  v.  Kimpton  215  a 

Davies  v.  Fisher  121 

v.  Speed  177 

Davies  &  Kent's  Contract,  Re  258,  480 

Davis,  Re  607 

Davis  v.  Bush  215  a 

v.  Hollingsworth  19,  68  o 

v.  Jenkins  685 

v.  Jernigan  65 

v.  Memphis  &  Charleston  R.  R. 

Co.  39,  51 

c.  Williams  237  c 


Section 

Dawson,  Re         215  a,  385,  699,  699  a 

Dawson  v.  Dawson  91 

v.  Holbert  767 

v.  Lancaster  509  h 

Day  v.  Schroeder  42 

Dayton  v.  Phillips  740 

Dean,  Re  228  a,  898,  905 

Dean  v.  Dean  924 

t>.  Mumford  631,  751 

Dean  &  Canons  of  Winsor  ».  Webb 

43,  49 

Deas  v.  Horry  14 

Deer  v.  Devin  96 

Deerhurst  v.  St.  Albans  232,  401 

Dees  v.  Cheuvronts  40  a 

Defflis  v.  Goldschmidt  215  a 

Defogassieras  v.  Duport  259 

Deford  v.  Deford  232,  245  c,  248 

Defreese  v.  Lake  751 

Deihl  v.  King  88,  848 

Delany's  Estate,  Re          896,  898,  899 
Delaplane  v.  Crenshaw  585 

De  Lassus  v.  Gatewood  108 

Delbert's  Appeal  108 

Delhi  School  District  v.  Everett        39 
Delong  v.  Delong  308 

Den  v.  Central  R.  R.  Co.         307,  309 
v.  Davis  19 

v.  Demarest  107,  108 

v.  Page  232 

Dennehy's  Estate  651 

Depas  v.  Riez  772 

De  Peyster  v.  Michael  24,  307 

Derbyshire's  Estate  679 

De  Renne's  Estate         263  a,  724,  725 
Dericksen  v.  Garden  852 

DeSommery,  Re  476,  480 

Despard  v.  Churchill  259,  263  a 

De  Themmines  v.  Bonneval  605 

Detwiller  v.  Hartman          410  b,  410  c 
Devereux  v.  Elkins  586  a 

Devisme  v.  Mello  110 

DeWolf  v.  Lawson  751,  916 

Dexter  v.  Harvard  College   603  b,  678, 

684 

Dibbs  v.  Barrington  701,  704 

Dickinson  v.  Mort  433 

Dickson  v.  Dickson  118 

v.  Montgomery  613 

Diffenderfer  v.   St.   Louis  Public 

Schools  230 

Dillard  v.  Yarboro  14 

Dillon  c.  Fraine  63,  142 

v.  Reilly  205,  408  a,  903 

Dune  Savings  Co.  v.  Watson  249  c,  633 

Dodd  v.  Wake  215  a,  374 

Dodge  v.  Bennett  232 

v.  Williams  607,  751,  916 

Doe  v.  Bateman  30 

v.  Brabant  86,  180 

v.  Challis  338 

t>.  Clarke  220 

p.  Cooke  820 

».  Considine  103 

v.  Dorvell  112 

v.  Elvey  113  a 


XXIV 


TABLE    OF    CASES    CITED. 


Section 

Doe  ».  Eyre          70,  783,  784,  786,  788 

0.  Fonnereau  175 

«.  Gallini  660,  881 

».  Garrod  206 

p.  Gibson  23 

v.  Holme  113  a 

t>.  Martin  112 

».  McFadden  67 

v.  Mclaaac  422  a,  670 

v.  Morgan  921 

v.  Passingham  930 

v.  Pearson  282 

p.  Perratt  447 

v.  Perryn  110 

p.  Roach  921 

t>.  Scarborough  449,  456 

v.  Scott  12 

«.  Scudamore  108,  921 

».  Selby  921 

t>.  Simpson  14,  70 

*.  Stenlake  656 

v.  Vaughan  232 

».  Ward  121 

Dolley,  Doe  d.,  P.  Ward  121 

Donahue  r.  McNichol  208,  249  a,  353  a 

Doncaster  v.  Doncaster    365,  497,  499 

Donn  r>.  Penny  231 

Donoughmore's  Estate,  Re  279 

Dorchester  v.  Effingham  418 

Dorr  v.  Lovering  394  a 

Dorrian  v.  Gilmore  408  o,  898 

Doscher  v.  Wyckoff  107 

Doughten  v.  Vandever  607 

Douglas  v.  Douglas  77 

v.  Hawes  282,  307 

Dowd  v.  Montgomery  92 

Dowglass  v.  Waddell  428 

Downing  ».  Birney  751 

Doyle's  Estate,  Re  275 

Doyle  r.  Amer.  Fire  Ins.  Co.  15 

Drake  P.  Lawrence  107 

Drakeley's  Estate  704 

Draper  v.  Harvard  College  259,  263  b, 

265 

Drennan's  Appeal  852 

Drewett  v.  Pollard  711 

Driscoll  v.  Hewlett  899 

Drown  p.  Smith  57 

Drummond,  Re  896,  898 

Drummond  v.  Drummond  788 

Drury  p.  Grace  848 

Du  Bois  v.  Ray  633 

Ducker  ».  Burnham  108,  112 

Ducloslange's  Succession  770 

Ducloslange  r.  Ross  769 

Duffield  r.  Duffield  103 

Duggan  v.  Slocum          624  a,  678,  739 
Duke  of  Norfolk's  Case   938,  942,  943, 

947 

Dukes  o.  Dyches  91 

Duncan  v.  Lawson  259 

t .  Self  92 

».  Sylvester  577 

Dundee,  Magistrates  of,  r.  Morris  678 

Dungannon  v.  Smith   186, 231, 334, 335, 

401,  403-405,  407,  409,  464,  630, 883 


Section 

Dunn  v.  Flood  302,  303 

p.  Sargent  118 

Duplessis  v.  Kennedy  766 

Dutch  Church  v.  Mott  590 

Dutcher  P.  Culver  23 

Dutton,  Re  896,  898,  899 

Dyce  P.  Hay  578 

Dyke  v.  Walford  205 

Dyson  p.  Repp  727,  745 

E. 

Eary  v.  Raines  478 

Easterbrooks  v.  Tillinghast  603  t 

Eberly's  Appeal  722  a,  722  c 

Eckman  v.  Eckman  65 

Edelen  v.  Middleton  228,  848 

Edge  v.  Salisbury  683 

Edgerly  p.  Barker          369,  398  6,  857, 
865,  873,  884 

Edmonds  v.  Hughes  88,  849 

Edmondson's  Estate  121,  277 

Edward  Seymor's  Case  34 

Edwards's  Estate      701, 704,  711,  717- 

719 

Edwards  v.  Barksdale  14 

v.  Champion  227 

v.  Edwards  275 

v.  Tuck    215  a,  686,  701,  704,  711 

Egerton  v.  Brownlow  133 

v.  Massey  11,  113  o,  113  & 

Eggleston  v.  Swartz  751 

Elborne  v.  Goode      687,  690,  704,  713 

Elder's  Trustees  v.  Treasurer  of 

Free  Church  690,  704 

Eldred  v.  Meek  249  c 

Eliot's  Appeal  624  a 

Elliott  v.  Elliott  634,  640,  641 

Ellis  v.  Maxwell     259  a,  267,  686,  687, 
699,  704,  714 

r.  Prevost  772 

v.  Selby  894 

Elmer  v.  Scot  685 

Emerson  r.  Simpson  309 

Emison  v.  Whittlesey  108 

Emmet's  Estate  639 

England  v.  Prince  George's  Parish     611 
Entwistle  ».  Markland  676  a 

Episcopal   City   Mission   t>.   Ap- 

pleton  282 

Ernst  v.  Shinkle  737 

Errington,  Re  693,  695,  696 

Erskine  p.  Wright  755 

Evans  v.  Astley  232 

p.  Hellier  687,  703,  711 

p.  Walker  232,  841 

Evers  p.  Challis       338-340  c,  344,  930 

Doe  d.,  P.  Challis  338 

Everwike  P.  Prior  of  Birdlington      123 

Ewen  P.  Bannerman  678 

v.  Magistrates  of  Montrose       678 

Ewing  P.  Barnes  68  a 

Exmouth,  Re  365,  407 

Eyre  P.  Marsden       687,  694,  701,  702, 

704,  705,  711,  713 

Eyres  p.  Faulkland  33,  90  a,  842 


TABLE   OF   CASES   CITED. 


XXV 


P. 

Section 

Faber  v.  Police  108 

Fadness  v.  Braunborg  751 

Fair,  Estate  of  752 

Fairfield  v.  Lawson  621 

Fane,  Re  335,  422,  510 

Faraker,  Re  685 

Farington  v.  Barrel  124,  129,  134 

Farmer  v.  Francis  121 

Farnam  v.  Farnam  107,  633,  739 

Farnscombe,  Re  382 

Farnsworth  v.  Perry  40 

Farnum's  Estate  717,  718 

Farrand  v.  Petit  751 

Farrar  v.  M'Cutcheon  769 

Farrell  v.  Cameron  215  a 

Faulkner  v.  Daniel  231,  448 

v.  Elger  627 

Fay,  Estate  of  752 

Feit  r>.  Richards  121  j 

Fellows  v.  Miner          259,  263  a,  263  b 
Female  Orphan  Soc.   v.   Young 

Men's  Christ.  Asa.  768  a 

Ferguson  r.  Ferguson      247,  449,  631, 

670 

v.  Hedges  248 

v.  Mason  67 

Ferneley's  Trusts,  Re  441 

Ferrand  r.  Wilson    444,  464,  483,  497, 

501,  502,  504 

Festing  v.  Allen  923 

Field  v.  Drew  607 

Fields  v.  Lewis  107 

Fifield  v.  Van  Wyck  616 

Finch's  Contract,  Re  365,  633  o 

First  Bank  of  Montpelier  r.  Sioux 

City  Term.  R.  Co.  736 

First  Methodist  Church  v.  Old 

Columbia  Co.  38 

First  Universalist  Society  v.  Bo- 
land  40,  40  o,  41,  310  a,  606  t 
Fisher's  Appeal  590 
Fisher,  Matter  of  899 
Fisher  v.  Smith  65 
Fisk  v.  Fisk  770 
Fitch  P.  Rawling  576,  577 
t).  Weber  706 
Fitchie  v.  Brown  219  6,  367,  410  e 
Fitz  Gerald  v.  Big  Rapids  751 
Fitzhugh  v.  Anderson  96 
Fitzroy  v.  Richmond  530 
Planner  v.  Fellows  121  c,  232 
Flaten  v.  Moorhead  39 
Fletcher  v.  Fletcher  14,  39 
Flood's  Case  684 
Flora  v.  Anderson  215  a 
Flory  v.  Denny  77 
Flower,  Re  626,  964 
Flower  v.  Hartopp  299 
Floyer  v.  Bankes  467,  505 
Fly  v.  Guinn  306 
Foley  v.  Burnell  85,  365 
Folger  v.  Chase  44,  51 
Fonseca  v.  Jones  295,  389,  610,  687, 
696,  917 
Fontaine  ».  Thompson  683 


Section 

Forbes  t>.  Eccl.  Commissioners         578 
Ford  v.  Ford  259,  265,  751 

Fordyce  v.  Bridges      263  6,  266  o,  714, 

760 

v.  Ford  365 

Forsbrook  ».  Forsbrook    656,  658,  660, 

665 

Forster  v.  Brown  153 

Forsythe  v.  Lansing  107,  108 

Forth  v.  Chapman  361,  632 

Foscue  v.  Foscue  92 

Fosdick  v.  Fosdick  242-245,  374 

Foster  v.  Marshall  15  a 

v.  Romney  232 

v.  Stevens  751 

FotherguTs  Estate,  Re  365-367 

Fowler's  Appeal  262,  725 

Fowler  r>.  Dale  678,  579 

v.  Duhme  121  j,  744 

t>.  Fowler  898 

v.  Garlike  894 

Fox  v.  Fox  121 

v.  Horah  51 

Foxwith  v.  Tremain  159 

Foy  v.  Baltimore  40 

Fralick  v.  Lyford  609 

Franklin's  Estate  607,  678 

Succession  769 

Franklin  v.  Armfield          690,  684,  731 

v.  Hastings  607 

Fraser  v.  Campion  898 

v.  Fraser  215  a 

Frear  v.  Pugsley  963 

Freeman,  Doe  d.,  v.  Bateman      30,  72 

Freer  v.  Glen  Springs  Sanatorium    282 

Freke  v.  Carberry      269,  264,  266,  714 

Freme  v.  Clement  533 

French  v.  Old  South  Society   305,  306, 

310  a 

Friedman  v.  Steiner  39 

Frost,  Re  133,  287,  298  b,  298  hh, 

298  t,  947 

Fry  v.  Capper  434 

Fuller  v.  Arms  282 

v.  Fuller    •  91 

v.  Missroon  65 

Fulmerston  v.  Steward  138,  139 

Furness  Minors'  Estate  717,  723 


G. 

Gafney  o.  Kenison  683 

Gage,  Re  205  a,  209,  232,  522 

Gage  v.  School  District  in  Bosca- 

wen  307 

Gale  r.  Coburn  57 

Gallard  v.  Hawkins  205 

Gallego  v.  A.  G.  616 

Gallini,  Doe  d.,  v.  Gallini  660 

Gambrill  v.  GambriU  245  I 

Game,  Re  437,  441 

Garde  Browne,  Re  230  CM 

Gardette's  Estate  240,  438,  523  b 

Gardner  v.  Sheldon  14,  3< 

Garland  v.  Brown  277 


XXVI 


TABLE  OF  CASES  CITED. 


Section 

Garrett  v.  Scouten  309 

Garrod,  Doe  d.,  c.  Garrod  206 

Garth  v.  Cotton  192 

Gassiot,  Re  681 

Gateward's  Case  676,  579 

Gault  t>.  Hall  65 

Gaved  v.  Martyn  588 

Gay's  Estate  752,  898 

Gay  v.  Gay  159,  160 

Gebhardt  v.  Reeves  42 

Gee  v.  Audley  537 

Geiger  v.  Brown  852 

Genet  v.  Hunt  626,  963 

Gentili,  Goods  of  259 

Gerard  v.  Beecher  739 

v.  Ives  739 

Gerber's  Estate  249  bb,  674 

Germin  c.  Ascot  141  c 

Gerrard  v.  Butler  428 

Gex  v.  Dill  214 

Gibbens  p.  Gibbens  108 

Gibert  v.  Peteler  308 

Gibson  r.  Armstrong  51 

v.  McNeely  647,  666,  740 

v.  Moulton  666,  740 

Giddings  v.  Smith  733 

Gidley  v.  Lovenberg  607 

Gilbert  v.  Murdock  92 

r.  Stockman  23 

Gilbertson  v.  Richards   270,  271,  273  a- 

275,  316,  667,  570 

Gilchrist  v.  Foxen  308 

Giles  v.  Boston  Society  305,  311,  898 
Gill,  Doe  d.,  v.  Pearson  282 

Gillam  ».  Taylor  683,  685 

Gillard  r.  Cheshire  Lines  Com- 
mittee 320 
Gillespie  v.  Broas  40 
Gillis  v.  Bailey  307 
Gilman  v.  McArdle  897 
Gilman,  Doe  d.,  v.  Elvey  113  a 
Gindrat  t>.  Western  R.  107 
Girard  Trust  Co.  c.  Russell  605,  677 
Glass  v.  Richardson  70 
Glenn  v.  Glenn  14 
Glover  v.  Condell  68  a,  89,  98 
Godfrey  c.  Alton  685 
Godolphin  v.  Godolphin  645 
Goldsborough  v.  Martin  232,  245  c, 
397,  408,  409 

Goldtree  v.  Thompson  752 

Golladay  ».  Knock  107,  108 

Gompertz  r.  Gompertz  428,  430  d 
Gooch  c.  Gooch  232,  244,  269,  374,  388 
Good's  Succession  770 

Good,  Re  896 

Goodday  v.  Michell  576 

Goodiar  r.  Clarke  448 

Goodier  c.  Clerke  448 

v.  Edmunds    206,  247,  388,  414  a, 
609  d,  509  t 

r.  Johnson      206,  214,  349  a,  388, 
428,  609  d,  509  t 

Gooding  r.  Read  232,  242,  249  b 

Goodinge  r.  Goodinge  683 

Goodman  c.  Goodright  182 


Section 

Goodman  v.  Saltash          682,  682,  685 

Goodrich's  Appeal  624 

Goodtitle  c.  Billington  921 

v.  Burtenshaw  60 

v.  Wood  182 

o.  Woodhull  656 

Goodwin  v.  Clark  448 

Gore  v.  Gore        60,  174,  180,  181,  209 

Gorham  v.  Daniels  67 

Goring  v.  Bickerstaffe      163,  164,  167, 

168,  189 

v.  Howard  345 

Gorst  v.  Lowndes  697 

Gortario  v.  Cantu  730,  773 

Gosling  v.  Gosling      120,  367,  641,  692 
Gosset's  Settlement  529 

Gould  v.  Taylor  Asylum  607,  916 

Governor  St.  Thomas  Hospital  v. 

Charing  Cross  R.  Co  590 

Gowdchep's  Case  124 

Gowen's  Appeal  215  a 

Gower  v.  Grosvenor          231,  361,  364 

Goyeau  v.  Gt.  West.  R.  Co.  306 

Graham  v.  Graham  92 

v.  Moore  14 

v.  Whitridge       245  e,  245  h,  245  k, 

245  I,  431,  622,  531,  534, 

561  d,  631 

Grange  c.  Tiving  475 

Grant  v.  Lynam  408 

v.  Stimpson  739 

Gray  t>.  Blanchard  305,  306 

v.  Bond  577 

D.  Chicago  M.  &  St.  P.  Ry.  Co. 

307 

v.  Gray  19 

v.  Montagu  269 

r.  Whittemore  232,  353,  633 

Created  v.  Created  231 

Green  v.  Allen  613 

v.  Edwards  150 

t).  Gascoyne  694,  701,  713 

v.  Howard  683 

r.  Putnam  583 

Greene  v.  Dennis  248 

Greenwood  v.  Roberts  391 

Greer  c.  Pate  68  a 

Greet  v.  Greet  121 

Griesley  v.  Chesterfield  676  a 

Griff  en  v.  Ford  231 

Griffin  v.  Blunt  374 

t».  Carter  93 

v.  Graham  620,  731 

Griffith  v.  Harrison  645,  647 

r.  Jones  683 

v.  Morrison  676  a 

».  Pownall  389,  510,  537 

Griffiths  t>.  Vere  687,  691 

Griggs  v.  Dodge  88 

Grim's  Appeal  718 

Estate  717,  722 

Grimes  v.  Harmon  614 

Grimke  t>.  A.  G.  607,  678 

Grimstead  v.  Marlowe  576,  579 

Grimston  r.  Bruce  282 

Grosvenor  v.  Bowen  112 


TABLE    OF    CASES    CITED. 


XXV11 


Section 

Groves  v.  Groves  215  a 

p.  Nutt  769 

Guild  v.  Richards  282,  306 

Gullett  P.  Lamberton  91 

Gulliver  o.  Wickett  170,  338 

Gully  v.  Neville  746 

Gumbert's  Appeal  38 

Guy  v.  Guy  643,  650 

Gyde,  Re  605,  607 

H. 

Haddon's  Case  937 

Hagen  v.  Sacrison  752 

Haines,  Estate  of  752 

Hale  v.  Hale  231,  382,  383,  385 

v.  Herring  121  h 

v.  Pew  483,  647,  651 

Haley  p.  Bannister  699,  704 

Halford  v.  Stains  701,  702,  711 

Hall  P.  Deering  34 

p.  Hall  374 

v.  LaFrance  Engine  Co.  107 

v.  Nottingham  576 

v.  Nute  103 

v.  Turner  39,  40,  279,  280 

v.  Wright  108 

Hallinan's  Trusts    515,  522,  523  c,  537 

Hallum  v.  Yourie  96 

Hamilton  v.  Brickwood  215  o 

v.  Hempsted  19,  663 

v.  Rodgers  378 

Hamlin  v.  Mansfield  237 

Hammond  v.  Railroad  Co.  307 

Hampton  v.  Holman        232,  645,  652, 

658,  660 

Hanbury  and  Cookrell's  Case  159 

Hancock,  Re      340  c,  349  e,  428,  430  c 

Hancock  v.  Butler  633 

v.  Watson     338,  340  c,  349  e,  428, 

430  c 

Hand  v.  North  380 

Handall  v.  Brown  151 

Handcock's  Trusts,  Re        561  6-561  e 
Handley  v.  Palmer  678 

Handy  v.  McKim  65 

Hanington,  Doe  d.,  v.  McFadden      67 
Hanley  p.  Kansas  Coal  Co.  209 

Hannington  v.  Richards  151 

v.  Ryder  151 

Haralson  v.  Reed  852 

Harbin  r.  Masterman    679,  679  a,  700, 

704 

Harcourt,  Re  78 

Harding  v.  Nott  347 

Hardy  v.  Galloway  275,  306 

Hare  v.  Burges  230 

Hargreaves,  Re  277,  475 

Harlow  p.  Cowdrey  236 

Harmon  v.  Harmon  739 

Harper  v.  Central  Trust  Co.  607,  679  a 

p.  Deposit  Co.  607,  679  o 

v.  Stanbrough  769 

Harrell  v.  Davis  92 

p.  Harrell  94 

Harrington's  Will  751 


Section 

Harrington  p.  Harrington   365, 366, 367 

p.  Pier  607,  610,  751 

Harris  P.  Barnes  60 

p.  Carruthers  418 

p.  Carson  585 

p.  Chesterfield  579,  583 

p.  Clarissa  228 

p.  Davis  227,  231 

p.  Du  Pasquier  894 

p.  McLaran  91,  249,  852 

p.  Smith  848 

Harrison  v.  Grimwood  121 

p.  Harrison         687,  694,  705,  714 

p.  Round  449 

p.  Spencer  714 

Harrop's  Estate,  Re  205 

Hart  P.  Seymour          236,  237  c,  509  p 

Hartford  Trust  Co  P.  Wolcott          739 

Hartman's  Estate  852 

Hartopp  P.  Carbery  316,  450 

Hartson  p.  Elden     237  d,  413,  475,  898 

Harvard  College  p.  Balch  112 

v.  Soc.  for  Prom.  Theological 

Education  685 

Harvey,  Re  214,  349  c 

Harvey  P.  Stracey         428,  430  d,  510, 
516,  522,  537,  538,  631 
Harwell  P.  Lucas  137 

Hasker  p.  Summers  275,  485 

Haslett,  Re  107 

Hasley  p.  Hasley  770 

Hastie  v.  Arsdie  714 

Hastings  Corporation  p.  Letton          51 
Hatton  P.  Weems 

Haven  P.  Haven  363 

Havens  P.  Sea  Shore  Land  Co.  65 

Haverington's  Case  151 

Hawes  Place  Congregational  Soc. 

p.  Trustees  of  Hawes  Fund          679 

Hawley  P.  James  249  a,  267 

Hay  P.  Coventry  232 

Hayden  p.  Stoughton  12,  248,  308 

Hayes  P.  Hayes  232,  249  a 

p.  Martz  744 

p.  Tabor  103 

Haygarth,  Re  447 

Haynes  p.  Haynes  215  a 

Hayward  v.  Spaulding  107,  921 

Haywood  v.  Stillingfleet  60 

Heald  p.  Briggs  739 

p.  Heald       232,  245  c,  245  e,  245  I 

p.  Ross  280 

Healy  P.  A.  G.  896,  898 

p.  Healy  739 

Heard  P.  Read  490,  499 

Heasman  p.  Pearse  447,  631 

Heathcote,  Re  676,  710 

Heberle,  Estate  of  752 

Heilman  v.  Heilman  112 

Heisen  p.  Ellis  633 

Heiss  P.  Murphey  607 

Helfestine  v.  Garrard  23,  68 

Helm  P.  Webster  42 

Henchman  p.  A.  G.  205 

Henderson  P.  Hunter  38 

p.  Kinard  91,  848 


XXV111 


TABLE    OF   CASES    CITED. 


Election 

Hendy's  Estate  752 

Hennessy  r.  Patterson  107 

Henrion  o.  Bonham  896 

Henry  p.  Etowar  County  307 

t.  Henderson  746 

v.  Means  88,  848 

Henshaw  r.  Atkinson  607 

Hensman  v.  Fryer  113  a 

Henzell,  Re  609  e 

Berber's  Succession  769 

Herbert  P.  Webster  437,  441 

Heron  r.  Stokes  112 

Hertz  o.  Abrahams  19 

Heuser  r.  Harris  607 

Hewit  r.  N.  Y.,  N.  H.  A  H.  R.  R. 

Co.  739 

Hewitt  v.  Green  249  h,  353,  631 

Heyns  v.  Villare  63 

Heywood  ».  Heywood       261,  696,  714 
Hibb's  Estate  722  d 

Higgenbotham  v.  Rucker  97,  848 

Higginbotham  p.  Barrett          704,  714 
Higgins  P.  Derby  361 

v.  Dowler  361 

Higginson  v.  Turner  583 

Hill,  Re  365,  405,  407  6,  710 

Hill  P.  Hill         88,  91,  94,  97,  363,  848 

v.  Lord  584,  585 

Hillen  v.  Iselin  245  c,  395  a,  510 

Hills  v.  Simonds  392,  394,  394  a 

Hillyard  P.  Miller  678 

Hilton  r.  Hilton  120,  692 

Hinckley's  Estate  752 

Hinde  v.  Lyon  138 

Hinrichsen  t.  Hinrichsen  108 

Hoare  p.  Osborne  898,  899 

p.  Parker  86,  828 

Hobbs  v.  Parsons  277 

Hoboken  Land  Co.  v.  Hoboken         40 

Hobson's  Will,  Re         258,  260  a,  510, 

637,  633,  641 

Hobson  P.  Hale  259,  265 

Hocking,  Re  215  a 

Hockley  v.  Mawbey  291 

Hodgson  v.  Halford  250,  437 

Hodson  p.  Ball  206,  214 

Hoe  v.  Garrell  138,  142 

Hoes  r>.  Hoesen  852 

Hogan  P.  Byrne  896 

Hogg  v.  Jones  366 

Hoggatt  P.  Gibba  769 

Holder  v.  Preaton  478 

Holland  p.  Alcock  894 

v.  Peck  620 

Hollander  r.  Central  Metal  Co.     230  b, 

2451 

Hollis'a  Hospital,  Re  302 

Holloway  p.  Webber  366,  367 

Holmes  p.  Walter  232,  751 

Holmcsdale  r.  West  365,  418 

Holt  P.  Deshon  737 

Holton  v.  McAllister  93 

Holmer  r.  Shelton  89 

Hood  P.  Dover  610 

Hooker  p.  Utica  Turnpike  Road 
Co.  40 


Hooper  v.  Cumminga 

Hope  v.  Brewer 
r.  Gloucester 
v.  Hutchins 
v.  Johnson 

Hopkins  v.  Crossley 


Section 
307 

263  &,  265 
230,  316 
91 
228 
610 


p.  Grimshaw   40,  310  a,  603  t,  685 
v.  Hopkins  189,  194,  325,  645 

Hopper,  Den  d.,  v.  Demarest    107,  108 
Horn  v.  Gartman  91 

Hornberger  v.  Hornberger  904 

Homer  p.  Chicago  &c.  R.  R.  Co.     306 
Hornung  p.  Sedgwick  752 

Horry  v.  Glover  88 

Horwitz  p.  Norris  720 

Hosea  v.  Jacobs  231 

Hosford  v.  Ballard  •  309 

Hoste  v.  Pratt  379 

House  v.  Jackson  107 

Houston's  Estate  626  a 

Howard  v.  Norfolk  161,  169 

Howbert  v.  Cawthorn  108 

Howe  v.  Hodge  121  c,  249  d,  374 

v.  Moree  275  a,  609  I,  509  n 

Howell's  Estate  717,  718,  722  d 

Howell  P.  Long  Island  R.  R.  Co.     306 
Hoyle  v.  M'Cunn  577 

Huber's  Appeal  720 

Huber  v.  Donoghue  120 

Hucks  v.  Hucks  645 

Hudgins  v.  Bowes  230 

Hudson's  Trusts,  Re  205 

Hudson  P.  Hudson  77 

Hughes  v.  Cannon  92 

v.  Daly  621 

v.  Ellis  231 

p.  Hughes  751 

Hugo  v.  Williams  656 

Hull  v.  Osborn  751 

Humberston  r.  Humberston     189, 193, 
645,  660,  652,  943,944 
Hume,  Re  631,  633 

Hunt  r.  Beeson  309 

p.  Davis  92 

p.  Hunt  57,  65 

p.  Wright  305,  311 

Huntbatch  p.  Lee  167 

Hunter,  Re  627 

Hunter  p.  Trustees  of  Sandy  Hill     685 
Hurlbatt,  Re  699  b,  710 

Hurst  P.  Hurst  786 

Huss,  Matter  of  263  b 

Hussey  p.  Sargent   263  a,  263  b,  398  b, 
737,  893 

Hutchinson  p.  Tottenham    232,  349  d, 
480,  522,  631 

Hutchison's  Appeal  509  I 

Hyde  p.  Parrat  84,  828,  830 


I. 


Ibbeteon  p.  Ibbetson  334,  407 

Idle  P.  Cook  33 

Indianapolis  R.  R.  Co.  r.  Hood       306 
Indian  Orchard  Canal  Co.  v.  Sikes    305 


TABLE    OF   CASES    CITED. 


XXIX 


Section 

Ingersoll  r.  Sergeant  26 

Inglis  v.  Sailors'  Snug  Harbor  607 

lugraham  v.  Ingraham      607,  678,  683 
Ingram  c.  Porter  91 

Irons  ».  Smallpieoe  77 

Irwin  v.  Irwin  529 

Isaac  v.  Defriez  683,  685 

v.  Gompertz  608 

Ivimey  v.  Stocker  588 


J. 


Jack  d.  Westby  v.  Fetheretone        447 

Jackson  v.  Brown  664 

v.  Demarest  309 

».  Dougherty  County  40 

D.  Dunsbagh  57,  67 

t.  Jackson  58 

v.  Majoribanks  121 

T.  Phillips  353,  608,  680 

v.  Schutz  24 

v.  Serbring  65 

v.  Sublett  88 

v.  Topping  306 

Jacob  and  Telling's  Case  159 

Jacob's  Will,  Re  120 

Jacobson  v.  Fountain  574 

Jagger  v.  Jagger  695 

Jaggers  v.  Estes  91,  96 

Jamaica  Pond  Aqueduct  Co.  v. 

Chandler  40 

James  v.  Allen  894 

v.  Masters  852 

v.  Wynford  380 

Janey  v.  Latane  616 

Jarman's  Estate,  Re  894 

Jay  r.  Jay  159 

Jee  c.  Audley         182,  215,  215  a,  339, 

373,  537 

Jeefers  P.  Lampson  108 

Jeffersonville  &c.  R.  Co.  v.  Barbour 

309 

Jeffries  t>.  Jeffries  282 

Jenkins  v.  Guarantee  Trust  Co.       267 

t>.  Jenkins  University        40,  51  a, 

603  t 

Jermyn  v.  Orchard  808 

Jesson  v.  Wright  881 

Jocelyn  v.  Nott  605,  622 

John's  Will,  Re  597,  607 

Johnson's  Trusts       269,  365,  366,  594 

Johnson  v.  Battelle  112 

v.  Edmond       101,  113  a,  118,  739 

».  Holifield  898,  899 

v.  Jacob  108 

v.  Johnson          97,  121 ;,  737,  852 

v.  Lish  228 

v.  Mayne  625 

v.  Mitchell  91 

».  Norway  50 

v.  Preston          214  d,  237  c,  249  d 

v.  Webber  739 

Johnston's  Estate          232,  242,  245  c, 

249  b,  249  bb,  249  c,  475 

Johnston,  Re  120,  365,  407 


Johnston  t>.  Spicer 
Jones,  Re 
Jones  v.  Da  vies 

v.  Habersham    311, 

v.  Hoskins 

v.  Langhorn 

v.  Maggs 

v.  Postell 

v.  Roe 

v.  Sothoron 

r.  Zollicoffer 
Jordan  v.  Roach 

v.  Stevens 

r.  Woodin 
Josselyn  v.  Josselyn 
Judd  v.  Judd 

K. 


Section 
205 

626,  898 
15  a 

590,  697,  607 
91 

88,849 

704,  711 

14,  313,  455 

12 

848 

88 

19,  746 

57 

736 

120,  692 
374 


Kain  ».  Giboney  616 

Kampf  v.  Jones  426,  544,  552  b 

Kane's  Estate  852 

Kasey  v.  Fidelity  Trust  Co.  40  a,  737 
Kauri  Timber  Co.  v.  District  Land 

Registrar  275 

Kavanaugh's  Will  751,  916 

Keating  v.  Reynolds  88 

Keen  v.  Macey  91 

Keening  v.  Ayling  308 

Kehoe  v.  Wilson  896,  898 

Keiley  v.  Fowler  633 

Keith  v.  Keith  704,  714,  760 

v.  Scales  40  (9) 

Kelly  v.  Love  616 

v.  Nichols  898 

Kelso  v.  Dickey  118 

Kenege  v.  Elliott  309 

Kennard  v.  Kennard  103 

Kennedy  v.  Kennedy  413 

t.  Palmer  263  b 

Kenner  v.  Amer.  Contract  Co.  307 
Kenrick  v.  Dempsey  275,  329,  485 
Kent  v.  Waite  585 

Kenworthy's  Estate  718 

Kenyon  v.  Nichols  584 

Keogh  v.  M'Grath  205 

Kepler  v.  Larson  19 

Keppell  v.  Bailey  269 

Ker  c.  Dungannon   335,  336,  399,  407, 
656,  820 

t>.  Hamilton  374,  638,  865 

Kerlin  v.  Campbell  38 

Ketchum  v.  Corse  739 

Kevern  v.  Williams       634,  638,  639  o, 

639  aa,  640 

Kilpatrick  c.  Graves  39 

Kilvington  v.  Gray  676  a 

Kimball  v.  Crocker  121,  672 

King,  The,  r.  The  Prior  of  the 

Hospital  of  St.  John  46 

King's  Attorney  c.  Sands  205 

King  c.  Cotton  227 

r.  Ecclesfield  578 

v.  Hollington  43 

r.  King       431,  542,  545,  548,  550, 
552  a,  552  b 


XXX 


TABLE   OF   CASES   CITED. 


Section 

King  v.  Parker  681 

Kingham  r>.  Kingham  606  a 

Kinnaird  v.  Miller  618 

Kinsey  p.  Kinsey  626,  679  a 

Kirkland  r.  Cox  68  a 

Kirkpatrick  v.  Davidson  88,  91,  96 

v.  Kirkpatrick  112 

Klingman  v.  Gilbert  214,  633 

Klinkener  v.  M'Keesport  685 

Knapp  v.  Thomas  23 

Knapping  v.  Tomlinson  389,  391 

Knight's  Estate  626 

Knight  P.  City  of  London  Brewery 

Co.  320 

p.  Donahoo  96 

p.  Ellis  362 

v.  King  679 

p.  Knight  161 

p.  Leak  88 

r.  Wall  88 

Knowles  v.  Dow  685 

v.  Nichols  684 

Knox  v.  Jones  259 

v.  Wells  121 

Kopmeier's  Will  761 

Kountz's  Estate  249  66 

Krou  v.  Krou  68  a 

Kumpe  v.  Coons  107 

Kurtz  v.  Beatty  685 

Kuuku  v.  Kawainui  65,  67 


L. 

Lackland  v.  Walker 
Lade  p.  Holford 
Lafferty's  Estate 
Lake  Erie  &  W.  R.  R.  Co. 
Lamb  v.  Archer 
Lambert  v.  Smith 

p.  Thwaites 

Lampet's  Case       74,  80, 
152, 

Lampitt  v.  Starkey 
Lamport's  Case 
Lance  v.  Lance 
Lancefield  r.  Iggulden 
Landers  v.  Dell 
Lane  v.  Cowper 

v.  Eaton 

p.  Lane 

Den  d.,  v.  Davis 
Lanesborough  t>.  Fox 
Lang  v.  Ropke 

p.  Wilbraham 
Langley  P.  Chapin 
Langston  v.  Blackmore 
Lantsbery  v.  Collier  lt  J 
Lantz  v.  Massie 
Lassence  v.  Tierney 
Latta  p.  Lowry 
Lavalle  P.  Strobel 
Laverty  P.  Layerty 
Law's  Succession 
Lawe  P.  Hyde 
Lawley,  Re 


690 

464 

722  d 

v.  Priest   282 

357,  359 

65 

112 

82,  126,  133, 

169,  789,  813 

152 

159 

93,844 
113  a 
739 
131 
751 
121 
19 
452 
231 
231 
306 
629 

,  497,  499 
112 

426,  431 

110 

23 

684,898 
770 

306,  309 
626  c 


Section 

Lawrence's  Estate    201,  209,  232,  239, 

249  a,  476,  477,  510, 

623  6,  524,  626,  963 

Lawrence  v.  Bayard  107 

v.  Beardsley  112 

v.  Lawrence  413 

v.  Smith    249  c,  249  e,  249  g,  374, 

395 

Lazarus  v.  Lazarus  704,  714 

Leach  v.  Leach  633,  634,  637 

Leake  v.  Robinson         249  a,  343,  373, 
375,  382,  385,  389,  687 
v,  Watson  739 

LeBlanc's  Succession  769 

Lebon  v.  Penavaire  764 

Lechmere  &  Lloyd,  Re      923,  924,  925 


Ledgerwpod  p.  The  State 
Lee's  (Vincent)  Case 
Lee  v.  Lee 

v.  O'Donnell 

v.  Tower 

Lehigh  Coal  Co.  v.  Gluck 
Leisenring's  Estate 
Leng  v.  Hodges 
Lennig's  Estate 


23 
151 

110,  151 
245  c 
259 
306 
716 
215  a 

2 14  d,  232, 597,  626  a, 
724,  851 
896 
108 
112 

40,  41,  594 
898,  908 
249  d,  739 
33,  776 
108 

206,  214 
245  ifc,  245  I 
722  a 

121,  121  66 
678 
365 
626  a 
362 

94,  739 
930 
51 
33 

397,  408,  633,  683 
607 

334,  365,  418 
737 
679  a 
645,  648 
248 


Lennon's  Estate 
Lenz  P.  Prescptt 
Leonard  Lovie's  Case 
Leonard  v.  Burr 

p.  Haworth 
Lepard  P.  Clapp 
Lethieullier  v.  Tracy 
L'Etourneau  p.  Henquenet 
Lett  P.  Randall 
Levenson  P.  Manly 
Levy's  Estate 
Levy,  Re 
Levy  P.  Levy 
Lewin's  Trusts 
Lewis's  Estate 
Lewis  P.  Hopkins 

p.  Lewis 

p.  Walter 

Life  Assoc.  p.  Fassett 
Liford's  Case 
Liley  p.  Hey 
Lilly  P.  Tobbein 
Lincoln  p.  Newcastle 
Lindner  v.  Ehrich 
Lindsay's  Trustees 
Line  p.  Hall 
Lingan  p.  Carroll 
Linn  Regis,  Mayor  of,  p.  Taylor 

677,  580 

List  P.  Rodney  108,  215  a 

Literary  Fund  p.  Dawson   607,  616,  617 
Lithgow  p.  Pearson  42 

Little  P.  Willford  610 

Littlefield  p.  Maxwell  584,  585 

Littlejohns  P.  Household  108 

Liversage,  Doe  d.,  p.  Vaughan          232 
LJanover,  Re  686 

Lloyd  P.  Carew     178-181,185-187,942 

p.  Jones  679 

».  Wilkinson  161 


TABLE    OF   CASES   CITED. 


XXXI 


Section 

Locke  v.  Motley  577 

Lockman  v.  Reilley  107 

Lockridge  v.  Mace  249  a 

Loddington  v.  Kime  113  a,  113  6, 

173,  189 

Lombe  v.  Stoughton  691 

London  v.  Turner  96,  852 

London,  Mayor  of,  t>.  Alford  133 

London  &   Brighton  R.   Co.   v. 

Fairclough  77 

London  &  S.  W.  R.  Co.  v.  Gomm     230, 

230  b,  269,  275,  275  a,  279,  280,  298, 

316,  330,  330  c,  414  a,  570 

Long  ».  Blackall         168,  182,  198,  221 

Longdon  v.  Simson  687,  699 

Longfield  v.  Bantry  471  a 

Longhead  v.  Phelpa  342 

Loomer  v.  Loomer  232,  739 

Lord  v.  Clergy  Society  51 

v.  Colvin  690,  704 

Loring  v.  Blake  232,  851 

Lorman  v.  Benson  23 

Los  Angeles  County  t>.  Winans        107, 

108 

Loscombe  v.  Wintringham  607 

Lott  v.  Meacham  88 

Lougheed   v.    Dykeman   Baptist 

Church  40 

v.  Wyndham      133,  161,  167,  168, 
189,  217,  226 
Lounsbury  v.  Trustees  of  Burial 

Association  751,  916 

Lovelace  v.  Lovelace  937 

Lovell  v.  Lovell  172 

Levering  v.  Lovering      394,  394  a,  395 

v.  Worthington        232,  244,  249  a 
Lovie's  (Leonard)  Case  112 

Low  v.  Burron  189,  227,  229 

Lowman,  Re  231,  357,  362 

Lowry  v.  Muldrow  392 

Loyd  v.  Loyd  248 

Luddington  v.  Kime       113  a,  173,  189 
Ludlow  v.  Greenhouse  685 

v.  N.  Y.  &  H.  R.  R.  Co.  307 

Ludwig  v.  Combs  228 

Lumley,  Doe  d.,  ».  Scarborough     449, 

456 

Lunn  v.  Thornton  77 

Lunt  v.  Lunt  121  c 

Lupton  v.  Elliott  389 

Lutz's  Estate  718,  722  c 

Lux,  Estate  of  752 

Luxford  v.  Cheeke  103 

Lyddon  v.  Ellison  215  a,  418,  645 

Lyde  v.  Taylor  91 

Lyford's  Charity,  Re  590 

Lyman  v.  Suburban  R.  R.  Co.         307 
Lyon  v.  Safe  Deposit  Co.  245  k 

Lyons  v.  Bradley   107,  232,  249  6,  373, 
410  e,  742 


M. 

McAlhany  v.  Murray 
McArthur  v.  Scott 
McAuley  v.  Wilson 


51 

110,  231,  740 
620 


Section 

McBride's  Estate  633 

McBride  v.  Farmera'  Gin  Co.    40  (1 1  a) 
McCall  v.  Lee  88,  91 

M'Call  v.  Lewis  91 

McCalop  v.  Stewart  767,  770 

McCampbell  ».  Mason  68  a 

McCool  v.  Smith  23 

McCord  v.  Ochiltree  23 

McCorkle  v.  Black  14 

McCormick  v.  Connell  309 

McCreary  v.  Coggeshall  113  a 

McCutcheon  v.  Pullman  Bank     214  d, 

633 

McCutchin  v.  Price  852 

McDaniel  v.  Watson  39 

M'Donald  v.  Bryce  687,  690,  704 

v.  Jones  389 

v.  M'Mullen  118,  228 

McDonnell,  Doe  d.,  c.  Mclsaac        37, 

422  a,  670 

M'Dowall  v.  M'Gill  757 

McElwee  v.  Wheeler  108 

M'Ginney  v.  Wallace  96 

McGlawn  v.  McGlawn  91 

McHugh  v.  McCole  894 

Mcllvain  v.  Hockaday  730 

Mclnerny  v.  Haase  751 

McKee's  Appeal  717 

McKelway  v.  Seymour  307 

McKissick  v.  Pickle  307 

McLarty  v.  McLaverty  714,  760 

McLeod  v.  Dell  730,  732 

M'Lure  v.  Young  14 

McMichael  v.  Peterman  107 

McNair  v.  McNair  755,  757 

McNeilledge  v.  Barclay  683 

v.  Galbraith  683 

McPherson  v.  Daniels  930 

McRoberts  v.  Moudy  51 

Machu,  Re  36 

Mackay's  Trustees  v.  Mackay         711 
Mackenzie  v.  Childers  275,  280 

v.  King  215  a 

v.  Mackenzie  690,  700 

MacKenzie  v.  Trustees  of  Presby- 
tery of  Jersey  598 
Mackinnon  v.  Peach  231 
Mackworth  v.  Hinxman  399, 407  a,  656 
Macleay,  Re                              121  j,  301 
Macomb  v.  Miller                            215  a 
Maconfl.  East  Tennessee  &c.R.  Co.    40 
Macpherson  v.  Stewart     259,  264,  631, 
690,  714,  760 

MacVean  v.  MacVean  672,  692 

Maddox  v.  Staines  180,  181 

Maden  v.  Taylor  215  a 

Madison  v.  Lannon  232 

Magistrates  of  Dundee  v.  Morris    678 
Magrath  v.  Morhead  120 

Maguire,  Re  607 

Maher  v.  Maher  121  6,  639  CM 

Mahon  v.  Savage  683 

Mahoning  County  v.  Young  40 

Mainwaring  v.  Baxter  413,  456 

v.  Beevor  641 

Malin,  Will  of          298  h,  298  hh,  298  » 


XXX11 


TABLE    OF    CASES   CITED. 


Section 

Mallet  P.  Sackford  82,  151 

Mandlebaum  P.  McDonell  23,  24 

Mangum  p.  Piester  14 

Manice  r>.  Manice  263  6 

Manning's  Case       74,  80,  82, 152-155, 
157,  162,  163,  296  o,  813-815,  817 
Manning  v.  Andrews     132,  132  o,  137, 
139,  191,  289,  652,  935 
Mansell  r.  Mansell  285 

Mapes  P.  American  Home  Miss. 

Co.  263  6 

Mappin  p.  Mappin  121 

Marden  P.  Chase  57 

Marks  v.  Marks  179,  180 

Marlborough  v.  Godolphin      182,  195, 
232,  289,  535,  645 

Marsh  v.  Reed  220 

Marshall  v.  Holloway       464-466,  674, 

688 

p.  Pearce  769,  771 

r.  Rives  88,  848 

Martelli  v.  Holloway         366,  367,  633 

Martin's  Estate  718 

Martin  v.  Margham  607,  678,  679 

p.  Martin  767 

p.  Ohio  River  R.  R.  Co.  306 

p.  Reed  77 

Marton  v.  Prior  of  Gisburn  776 

Mary  Portington's  Case  934 

Mason,  Re  699  b 

Massenburgh  v.  Ash       170,  176  o,  180 

Massey's  Appeal  248 

Massey  v.  Barton  522 

Massiugberd  v.  Ash        176  o,  180,  181 

Massy  v.  O'Dell  417 

Mathews  v.  Keble    690,  691,  704,  710, 

711 

Matlock  v.  Lock  744 

Matthews  P.  Daniel  228 

P.  Ward  23,  24,  205 

Matthiessen  Zinc  Co.  v.  La  Salle       42 
Maught  v.  Getzendanner  611 

Maulding  v.  Scott  88,  846 

Maxwell  r.  Harrison  96 

v.  Maxwell  96,  678,  679,  700 

May  P.  Boston  282 

Mayor  p.  Nixon  685 

Mayor  of  Colchester  p.  Brooke          51 
Mayor  of  Linn  Regis  r.  Taylor       577, 

580 

Mayor  of  London  v.  Alford  133 

Mayor  of  New  York  r.  Stuyve- 

sant  39,  200,  224 

Mayor  of  Saltash  P.  Goodman        579, 

581,  582,  583 

Mazyck  r.  Vanderhorst  14 

Meacham  v.  Steele  68  a 

Mead  p.  Mitchell  107 

Meek  r.  Briggs  736 

Megit  v.  Johnson  205 

Meikleham  P.  Meikleham  374 

Meller  r.  Stanley  230,  353,  409 

Mcllon's  Estate  215  a,  718,  725 

Melville,  Re  306 

Memphis  &  Charleston  R.  R.  Co. 
p.  Neighbors  40,  307 


Section 

Mercantile  Bank  r.  Ballard  108 

Mercer  Home,  Re  590 

Merchant's  Estate  607,  752 

Merchant  Taylor's  Co.  v.  A.  G.       282 
Mergenthaler's  Appeal  108 

Merkel  p.  Capone  353 

Merker's  Appeal  852 

Merlin  v.  Blagrave  374 

Merriam  p.  Simonds  118 

Merrick's  Trusts,  Re  206,  214 

Merrifield  v.  Cobleigh  309 

Merrill  v.  Amer.  Baptist  Mission- 
ary Union  19,  594 
Merriman  p.  Russell  40 
Merritt  v.  Bucknam  593,  594 
Mervin,  Re  631,  641 
Methodist  Church  p.  Clark  610,  751 
Mettler  p.  Warner  107,  108,  214  dt 

232 

Meyers  v.  Hamilton  Co.  374,  865 

Michael's  Trusts,  Re  437,  441 

Michel  v.  Beale  770 

Michigan  State  Bank  P.  Hastings    307 
Michon's  Succession  769 

Middlesex  Banking  Co.  v.  Field      746 
Middleton  v.  Losh  711 

Mifflin's  Appeal  524,  526  6 

Mildmay's  Case  62,  63 

Miles  v.  Harford     347,  349,  354  a,  365, 

480 

p.  Jaryis  924 

P.  Knight  215  a 

Millechamp  v.  Hudson  576 

Miller  v.  Atkinson  620 

v.  Chittenden  625 

v.  Macomb  215  a 

v.  Miller  737 

v.  Riddle  61  a 

Mills  v.  Davison  282 

v.  Evansville  Seminary  307 

v.  Parsons  136 

v.  Smith  227 

Millward,  Re  441 

Milner's  Estate  215  a 

Milroy  v.  Milroy  121 

Minge  v.  Gilmour  19 

Minneapolis  Mill  Co.  v.  Tiffany         23 

Minot  v.  Doggett  394  o 

v.  Purrington  110,  118 

p.  Tappan  118 

p.  Taylor  232 

p.  Treasurer  112 

Missionary  Society  p.  Humphreys 

245  c,  245  e,  611 
Missouri  Hist.  Soc.  p.  Academy  of 

Science  607 

Mitchell  P.  Leavitt  282,  309 

p.  Starbuck  586  a 

Mitcheson's  Estate  718,  722  o 

Mitford  P.  Reynolds  906 

Moffat  P.  Strong  88,  750,  848 

Mogg  P.  Mogg  294,  634-636,  647 

Moggridge  P.  Thackwell  608 

Mong  P.  Roush  619 

Monill  p.  Lawson  685 

Monkhouse  p.  Monkhouse  656 


TABLE    OF    CASES    CITED, 


XXX111 


Section 

Montagu  v.  Inchiquin  365,  407 

Monypenny  v.  Bering      231,  252-254, 

287,  344,  645,  647,  651,  653,  656,  877 

Moody  v.  Walker  846 

Moon  v.  Moon  760 

Moore,  Re  219  a,  367,  898 

Moore  v.  Bradley  19 

v.  Clench  230 

v.  Howe  88,  848 

c.  Littel  107 

v.  Moore  246,  396,  409 

v.  Weaver  112 

Moores  v.  Hare  108 

Moron's  Will,  Re  107 

Morgan  v.  Davey  273  a,  329 

v.  Gronow  477,  519,  521,  523, 

523  a,  526,  526  a,  529-531,  957 

v.  Morgan    415,  676,  704,  708,  711 

Moriarty  v.  Martin  545,  546,  552  b,  558 

Morice  v.  Bishop  of  Durham        245  6, 

894,  895,  898,  900,  906,  909  a 

Mormon  Church  v.  U.  S.  51 

Morris  v.  Bolles  739 

v.  Fisher  209  a 

t>.  Owen  852 

Morrison  v.  Rossignol  230 

Morrow  ».  M'Conville      896,  898,  900 

v.  Williams  92 

Morse's  Settlement  374 

Morse  v.  Martin  521 

v.  Natick  898 

v.  Ormonde  447,  448 

Mortimer,  Re     251,  643,  645,  647,  651 

Mortimer  ».  West  645,  652,  656 

Morton  v.  Babb  40  a,  68  a 

Moseley's  Trusts,  Re  382-384 

Mott  v.  Danville  Seminary  51  a 

Moule  v.  Overton  607,  633 

Moulton  v.  Trafton  40 

Moultrie  v.  Smiley  51 

Mounsey  v.  Ismay  676 

Mount  t).  Tuttle  259 

Mountain,  Re  415,  597,  607 

Muller  v.  Trafford  230 

Mullineux's  Case  138,  145 

Mullreed  v.  Clark  231,  751 

Murphey  v.  Brown  231,  744 

Murphy  v.  Cook  769 

v.  Hurlstone  320 

t>.  Merritt  93 

Murray  v.  Addenbrook  121 

v.  Green  51 

Mutton's  Case  131,  136 

Myer's  Estate  718 

N. 

Nash,  Re  325  a,  561  g,  933 

Nash  v.  Nash  108 

Needles  ».  Martin  611 

Neely  v.  Hoskins  282 

Nellis  v.  Rickard  752 

Nelson  v.  Callow  499 

Nettleton  v.  Stephenson  694,  697,  701 

Newbold  v.  Glenn  39 

Newcastle  r>.  Lincoln  365,  366,  418 


Section 

Newell  v.  Taylor  93,  852 

New  Haven  Young  Men's  Insti- 
tute v.  New  Haven  624,  739 
Newman  v.  Newman  374 
New  South  Meeting  House,  Re  896 
Newton's  Charity,  Re  590 
New  York,  Mayor  of,  o.  Stuyve- 

sant  39,  200,  224 

Nicholl  v.  Nicholl  645,  647 

Nichols  v.  Allen  894 

Nicoll  v.  N.  Y.  &  Erie  R.  R.  Co.        51 
Nicolls  v.  Sheffield  449 

Nilen,  Will  of  605 

Niles  v.  Mason  751 

Nimmo  v.  Bouncy  770 

Nix  v.  Ray  91 

Noble  r>.  Smith  77 

Noel  v.  Hill  280 

Norfolk's  (Duke  of)  Case        133,  155, 
159,  160,  168-170,  172,  178,  182,  186, 
191,  193,  197-199,  288,  296 
Norris  v.  Beyea  846 

North  v.  Butts  149 

v.  Graham  40  a 

North  Shields  Old  Meeting  House, 

Re  590 

Norton,  Re  476  a,   476  6,  480 

Norwich  Town  Close  Estate  Char- 
ity, Re  583,  682 
Nottage,  Re  894 
Nudd  v.  Hobbs                          584,  585 

O. 

Oakes  v.  Chalfont  166 

O'Brien's  Estate  232,  242,  428 

O'Brien  v.  Wetherell  306 

Ocean  Beach  Ass.  v.  Brinley  585 

Ocheltree  v.  McClung  64 

Oclie's  Case  138 

O'Connell  v.  The  Queen  34 

Oddie  v.  Brown          121,  673,  687,  704 
Odell  v.  Odell     121,  590,  593,  597,  607, 
678,  679 

v.  Youngs  231 

O'Ferrall  v.  Simplot  23 

Ogden  v.  McClane  232 

Ogilvie  v.  Kirk  Session  of  Dundee 

678,  679,  700,  714,  760 
Old  South  Society  v.  Crocker  305,  896 
Oliver's  Settlement,  Re  561  /,  561  g 
Olney  v.  Hull  1C8 

O'Mahoney  v.  Burdett      785,  787,  788 
O'Melia  V.  Mullarky  68  a 

Ommanney  c.  Butcher  894 

O'Neal  v.  Caulfield  740 

O'Neill  v.  Lucas  687,  704,  708 

Oppenheim  v.  Henry    121, 121  a,  639  aa 
Orme's  Case  930 

O'Rourke  v.  Beard  236,  509  k 

Osbrey  v.  Bury  112 

Osgood  v.  Abbott  307 

Otis  v.  Coffin  672 

v.  McLellan  232 

Otterback  v.  Bohrer  370 

Otterson  v.  Gould  708 


XXXIV 


TABLE  OF  CASES  CITED. 


Section 

Ould  r>.  Washington  Hospital  690,  607 

Oulds  v.  Harrison  77 

Overhill's  Trusts,  Re  215  a 

Overseers  of  Ecclesall,  Re  590 

Owatonna  v.  Rosebrock  751 

Owen's  Petition  232,  239 

Owen  n.  Cooper  91 

v.  Smith  44,  51 


P. 


Pack  v.  Shanklin 
Packer  v.  Scott 
Pad  wick  v.  Knight 
Page  v.  Palmer 
Pain  v.  Patrick 
Paine's  Case 
Paine  v.  Samms 
Palmer  ».  Cook 
v.  Holford 


619 
387 
580 
309 

576,  577 
14 
14 
68  a 
252,  253,  374 


v.  Union  Bank     310  a,  321  a,  593 

Palms  v.  Palms  751 

Paramour  v.  Yardley     80,  81,  83,  148, 

151,  826 

Parfitt  v.  Hember  645,  652 

Parish  v.  Merritt  93 

Park's  Settlement,  Re  298  hh,  947 

Parke's  Charity  590 

Parker  v.  Churchill  397 

t>.  Nichols  57 

D.  Ross  103,  108 

Parkhurst  v.  Roy  264,  678 

Parkin,  Re  526  c 

Parry,  Re  120,  704 

Parry  v.  Warrington  676  a 

Parsons  v.  Mills  57 

Patching  v.  Barnett  374 

Paterson  v.  Ellis  846 

Patterson  v.  Patterson  19,  40  a,  42, 737 
Pay's  Case  138,  139,  176 

Payne  t>.  Ferrall  138,  139,  176 

v.  Lassiter  96 

v.  Long  215  a 

Peabody  v.  Kent  265 

v.  Tyszkiewicz  112 

Peard  v.  Kekewich  120,  231,  521 

Pearks  v.  Moseley  385,  631,  633 

Pearsall  v.  Post  587 

Pearse  v.  Killian  14 

v.  Reeve  152,  161,  163 

Pease  ».  Cornell  739 

Peggy  v.  Legg  228 

Pelham  v.  Gregory  362 

Pells  v.  Brown          33,  121  i,  138,  139, 
142,  159,  160,  776 

Pemberton  r.  Barnes  14,  70 

Pendleton  v.  Kinney  621 

Penfield  r>.  Tower       231,  259,  265,  752 
Penhay  v.  Hurrell  58 

Pennsylvania  Co.  v.  Price     237  a,  237  6, 

430 
Pennsylvania  Horticultural  Soc. 

v.  Craig  38 

Pennsylvania  R.  R.  Co.  r.  Parke        38 
Pennsylvania  Schuylkill  Valley  R. 
R.  Co.  r.  Paper  Mills  38 


Section 

Penny  v.  Croul  751,  916 

v.  Little  23 

People  v.  Cogswell  752 

v.  College  of  California  51 

v.  Mauran  51 

v.  Van  Rensselaer  24 

Pepin  Co.  v.  Prindle  306 

Pepper's  Estate  626  a 

Perin  v.  Carey  684 

v.  McMicken  769 

Perkins,  Re  702 

Perkins  v.  Fisher  353 

Perley  v.  Langley  584,  585 

Perrin  v.  Blake  197 

Perrot's  Case  937 

Perry  v.  Clissold  33  (3) 

Perry  v.  Price  65 

Peters  v.  Lewes  &c.  R.  Co.    414  a,  478, 

490,  499,  507,  509  e,  509  g 

Petit  v.  Flint  &c.  R.  R.  Co.  751 

Pettingill  ».  Devin  42 

Petts  v.  Browne  159 

Pewterers  Co.  v.  Christ's  Hospital 

594 

Peynado  v.  Peynado  607 

Peyton  v.  Lambert  645 

Pforr,  Estate  of  752 

Philadelphia  v.  Girard  591,  678 

Philips  v.  Crews  88 
Phillips,  Re                 389,  428,  526,  708 

Phillips  v.  Harrow  625,  736 

v.  Heldt  744 

v.  Herron  220,  668,  740 

Phinizy  v.  Wallace  735 

Phipps  v.  Ackers  186 

v.  Kelynge  672,  675 

v.  Mulgrave  362 

Phipson  v.  Turner  521 

Pibus  v.  Mitford  930 

Picken  v.  Matthews  379 

Pickett  v.  Doe  d.  Pope  88 

Pickford  v.  Brown  374 

Pickle  v.  M'Kissick  306 

Pierce  v.  Spafford  685 

Pierson  v.  Lane  19,  23 

Pills  v.  Brown  159 

Pine  St.  Soc.  v.  Weld  590 

Pingrey  v.  Rulon  110 

Pinkney  v.  Weaver  11 

Pinslow  v.  Parker  138,  145 

Piper  v.  Moulton  305,  311,  898 

Pirbright  v.  Salwey  907 

Pitcairn  v.  Cemetery  Co.  38 

Pitt  v.  Jackson  645,  649 

Pitts  v.  Mangum  96 

Pitzel  v.  Schneider  249  c 

Plain  v.  Sams  14 
Planner,  Doe  d.,  v.  Scudamore         108 

Pleasants  v.  Pleasants  224,  228,  392 

Plumb  v.  Tubbs  306 

Plunket  v.  Holmes  11 

Podmore,  Re  607,  899 

Polk  D.  Faris  19 

Pollock  c.  Booth  230 

Pond  v.  Douglass  40  a,  603  t 

Poole  r.  Needham  33,  34 


TABLE    OF   CASES    CITED. 


XXXV 


Section 

Poor,  Doe  d.,  ».  Considine  103 

Pope,  Re  708 

Porter  v.  Bradley  159 

r.  Fox  380,  382 

v.  Osmun  107 

Post  v.  Bernheimer  308 

v.  Hover  633 

».  Weil  282,  308 

Potts  v.  Potts  366 

Poullain  v.  Poullain  77 

Powell,  Re  641 

Powell's  Trusts      526-526  6,  912-916, 

963,  965,  966,  969 

Powell  v.  Brown  91 

v.  Merrett  205 

Powers  v.  Bullwinkle  14 

Powis  v.  Capron  492 

Pownall  v.  Graham         219,  219  6,  367 

Poynton  v.  Wilson  576 

Pray  v.  Pierce  57,  65 

Presbyterian  Church  v.  Venable     51  o 

Price,  Re  232  a 

Price  v.  Almory  152 

v.  Atmore  152 

v.  Boustead  215  a 

v.  Price  91 

v.  School  Directors  307 

r.  Talley  88 

Pride  v.  Fooks  704 

Pringle  v.  Napanee  626 

Printup  v.  Hill  68  a 

Prior  of  St.  Bartholomew's  Case      124 

Prior  of  Spalding's  Case  47 

Proctor    v.    Bishop    of    Bath    & 

Wells  333,  339,  340  a 

Protestant  Epis.  Education  Soc. 

v.  Churchman  616 

Provost  v.  Provost  771 

Pryor  v.  Pryor  530  b 

Pulitzer  v.  Livingston     232,  237,  509  r 
Purdy  v.  Hayt  107 

Purefoy  v.  Rogers  11,  338,  920 

Pursell  v.  Elder  690,  704 

Purslowe  v.  Parker  138,  145 

Puukaikea  v.  Hiaa  67 

Pyne,  Re  608 

Q. 

Queensland  Trustees  v.  Woodward  896 
Quinlan  v.  Wickman  249  d,  353 


R. 


Raborg  v.  Hammond  848 
Race  v.  Ward  576,  579 
Rachal  v.  Rachal  769,  770 
Rackemann  v.  Riverbank  Im- 
provement Co.  121  j 
Railsbach  v.  Lovejoy  112 
Raleigh's  Estate  108 
Ralph,  Ex  parte  280,  281 
Ralph  v.  Carrick  690,  705,  713 
Ralston,  Re  896 
Ramsay  v.  De  Remer  107 


Section 

Rand  v.  Butler  739 

Randall  t>.  Russell  84,  828,  830 

Randell,  Re        33,  40  (2  o),  329,  603  t 
Randolph  t>.  Randolph  220 

Raphael,  Re  440  a,  479 

Rawley  v.  Holland  58,  60 

Rayman  v.  Gold  151,  810 

Read  v.  Gooding  374 

v.  Stedman  205 

Rector  of  Chedington's  Case  125, 

133,  151,  169,  288 

Rector  t>.  Dalby  120,  121  c 

Redington  v.  Browne   209, 230, 275, 320 

Reece  v.  Steel  656 

Reed's  Estate  509  o 

Reed  v.  Mcllvain     245  g,  245  k,  245  I, 

249  t,  394  o,  522,  626,  537,  963 

v.  Stouffer  39,  40 

Reeve  v.  Long  173 

Reichenbach  v.  Quin  898 

Reid  v.  Reid  255,  431 

v.  Shergold  526  c 

v.  Voorhees  249  c,  249  d 

Reinhart  v.  Lantz  19 

Retherick  v.  Chappel  153,  157 

Rex  v.  Croyden  124 

v.  Skingle  43 

Rhoads  v.  Rhoads  120,  121  c 

Rhode  Island  Hosp.  Trust  Co.  o. 

Harris  108 

Rhodes's  Estate        209,  232,  242,  322 
Rhodes  v.  Rhodes  613 

Ricards's  Trust  Estate  215  a 

Rice  v.  Boston  &  Worcester  R.  R. 

Co.  12 

Richards  v.  Coal  Co.  51 

v.  Hartshorne  107 

Richardson,  Re          282,  648,  652,  656 
Richardson  v.  Richardson  103 

Richmond  v.  Davis  744 

Rickard  v.  Robson  898 

Ridgway,  Re  77 

Ridley,  Re  436,  441 

Riggs  v.  New  Castle  38 

Ring  v.  Hardwick  374,  427 

Ripley  v.  Brown  679  a 

Rising,  Re  647,  648,  653,  660 

Rivers  o.  Adams  579,  581,  583 

Roach  v.  Wood  553 

Robb  v.  Washington  &  Jefferson 

College  260  o 

Robert  v.  Ristine  309 

v.  West  291,  848 

Roberts,  Re   206,  209,  232,  232  o,  337, 

841 

Robie  v.  Sedgwick  51 

Robinson's  Estate  752 

Robinson,  Re  607 

Robinson  i>.  Bishop  846 

v.  Hardcastle  232,  255,  645 

v.  Palmer  108 

v.  Robinson  881 

v.  Schly  91 

v.  Wood  784,  786 

Roche  v.  M'Dennott          311  o,  603  c, 

898,  899 


XXXVI 


TABLE   OF   CASES    CITED. 


Section 

Rocke  r.  Rocke  120 

Roden  r.  Smith  121  b,  639  CM 

Roe  v.  Galliers  210 

Rogers's  Estate   121, 671,  672,  677, 724 
Trust  Estate,  Re  108 

Rogers  v.  Eagle  Fire  Co.  67 

r.  Randall  88,  848 

Rome  Bank  r.  Eamea  107 

Ronckendorff's  Estate  232,  239 

Roney's  Estate  718 

Rong  r>.  Haller  751 

Rooke  v.  Queen's  Hospital  19 

Root  r.  Stuyvesant  875 

Roper  r.  Hallifax  456 

Rosher,  Re  121  j 

Ross  v.  Worsop  230 

Rosslyn's  Trust  687,  695 

Rous  v.  Jackson    321  b,  526,  526  a,  910, 
916,  964,  969 

Routledge  v.  Donil    191,  232,  255,  291, 

374,  510,  516,  529,  630  a,  531,  537, 

647,  841,  950 

Rowden  v.  Malster  14 

Rowell  D.  Jewett  308 

Rowland  t>.  Morgan  334,  365 

t.  Rowland  67 

p.  Tawney  374 

v.  Warren  14,  19,  39 

Roy  ».  Latiolas  769,  770 

Royall  v.  Eppes  88,  228,  848 

Rudiard  r>.  Haimington  151 

Russell,  Re  428,  437,  441 

Russell  v.  Allen  607,  680 

v.  Coffin  65 

v.  Girard  Trust  Co.  677 

v.  Hartley  249  d,  739 

«.  Kearney  88 

t>.  Milton  118 

Rust  v.  Lord  686  o 

Ruth  v.  Oberbrunner  607 

Ryan's  Settlement  215  a 

Rye's  Settlement  231 


S. 


Sabbarton  v.  Sabbarton  86,  361 

Sabledowsky  t>.  Arbuckle  67 

Sackville  c.  Dobson  164 

Sackville-West  v.  Homeadale  365,  418 
Sacramento  Bank  v.  Alcorn  570,  752 
Sadler  t.  Pratt  638 

Sagers  v.  Sagers  19 

St.  Amour  r.  Rivard  249  o,  647,  665 
St.  Aubyn  t>.  St.  Aubyn  697 

St.  Bartholomew's  (Prior  of)  Case  124 
St.  John  v.  Andrews  Inst.  263  6 

St.  John  v.  Dann  633,  739 

St.  Luke's  Church's  Appeal  593 

St.  Paul's  Church  v.  A.  G.  679  a 

St.  Paul  r.  Heath  711 

St.  Peter's  Church  r.  Bragaw  282 

St.  Philip's  Church  r.  Zion  Church  51 
St.  Stephen,  Re  683,  627,  682 

St.  Thomas  Hospital,  Governor  of, 
v.  Charing  Cross  R.  Co.  590 


Section 

Salisbury  v.  Clarke  65 

Salmon  v.  Gibba  630  a 

t>.  Salmon  382 

Saltash,  Mayor  of,  r.  Goodman     579, 

681,  682,  682,  685 

Saltern  v.  Saltern  227 

Sames  and  Paynes  Case  14 

Sammes's  Case  930 

Sampson  v.  Randall  88,  91 

Sanders  c.  Byrom  110 

r>.  Cornish  161 

Sanderson  v.  White  607 

Sanford  v.  Lackland  120 

Saulsberry  v.  Saulsberry  737 

Saumarez  v.  Saumarez  121 

Saunders  c.  Vautier  120,  692 

Savage  v.  Lee  57,  67 

Savill  Brothers  v.  Bethell  275 

Saxton  v.  Webber  751 

Sayer's  Trusts  215  o,  374 

Scarisbrick  r.  Skelmersdale     467,  674, 
676,  688 

Scarsdale  v.  Curzon  364-366,  418 

Scattergood  v.  Edge  121  i,  159 

Scatterwood  v.  Edge    180, 189,  269,  305 
Scheetz  v.  Fitzwater 
Schettler  v.  Smith 
Schlessinger  v.  Mallard 
Schmidt  v.  Hess 
School  Committee  ».  Kcsler 
Schwartz's  Appeal 
Scott  v.  Murray 

v.  West 

Scull  v.  Vaugine 
Seaburn  r.  Seaburn 
Seaman  v.  Wood 


13,  38 
231,  353 
603  i 
607 
40 
718 
38 

107,  751 
846 
616 
382 

Seamans  v.  Gibba  509  k 

Sears  v.  A.  G.  305  (6) 

v.  Putnam       374,  429,  430  d,  865 

v.  Russell  214,  393,  395 

Seaver  v.  Fitzgerald        232,  353  b,  851 

Seaward  v.  Willock  647,  653 

Second    Universalist    Society    v. 

Dugan  40 

Security  Co.  v.  Hardenburgh  91 

v.  Snow  428,  739 

Selby  v.  Robinson  579 

Selman  v.  Robertson  14 

Sergeant's  Case  159 

Sergeant,  Matter  of  718,  719,  722 

Sevier  v.  Douglas  766 

Sewell  v.  Denny  701,  702 

Seymor's  (Edward)  Case  34 

Shackelton  t.  Selree  68  a 

Shafer  v.  Tereso  107 

Shallcross's  Estate  121  c 

Shanley  v.  Baker  248 

Sharington  v.  Strotton  61 

Sharman  v.  Jackson  91 

Sharon  Iron  Co.  c.  Erie  305,  307 

Sharpe's  Estate  718 

Sharpe  P.  Durrant  316,  330  c 

Shattuck,  Matter  of  609 

Shaw  v.  Rhodes   686,  687,  697,  703,711 
t.  Thompson  627 

r.  Weigh  113  a 


TABLE   OF  CASES   CITED. 


XXXV11 


Section 

Shelley's  Case         237  c,  881,  930,  944 
Shelley  r.  Shelley  365,  418 

Shelton  v.  King  121  c 

v.  Montague  578 

Shepperd  t>.  Fisher  249  a 

Sheraton's  Trusts,  Re  896 

Sheridan  r.  House  107 

Sherman  v.  Baker  898 

v.  Cong.  Miss.  Soc.  607 

Sherwood  v.  Am.  Bible  Soc.  609 

Shillington  v.  Portadown  Council     678 
Shirley  v.  Ferrers  84,  828 

Shore  v.  Wilson  685 

Short  t>.  Stotts  23 

Shotwell  v.  Mott  590 

Shower  v.  Pilck  77 

Shriver  v.  Montgomery  744 

Shrunk  v.  Schuylkill  Nav.  Co.          577 
Siddall's  Estate  633 

Sidney  v.  Wilmer  699 

Siedler  v.  Syms          353  c,  410  b,  410  d 
Silk  v.  Prime  486 

Simmons  v.  Augustin  19 

v.  Cabaune  68  a 

v.  Pitt  703 

Simonds  v.  Simonda  232,  927,  930 

Simpson's  Case  137 

Simpson  v.  Cook  751 

v.  Southwood  130,  137 

Simpson,  Doe  d.,  v.  Simpson        14,  70 
Sims  v.  Quinlan  605 

Singleton,  Ex  parte  833 

Singleton  v.  Bremar  65 

Sinnett  v.  Herbert  607 

Sioux  City  St.  P.  R.  Co.  v.  Singer     306 
Sioux  City  Terminal  R.  R.  Co.  v. 

Trust  Co.  209,  564,  736 

Sitwell  v.  Bernard  676  a 

Skinner  v.  Shepard  282,  309 

Slade  v.  Patten  235,  237,  430 

Slark  v.  Dakyns  610,  521 

Slaughter  v.  Slaughter  846 

Slegel  v.  Lauer  13,  38 

Small  v.  Torley  408  a,  898,  903 

Smart  v.  Durham  311 

Smaw  v.  Young  107 

Smidmore  v.  Smidmore  430  c 

Smith's  Appeal          239,  395,  438,  519, 

622,  523,  523  a,  523  b 

Estate  678 

Smith,  Re  896 

Smith  v.  Barrie  306 

c.  Bell  88 

v.  Butcher  647 

v.  Camelford  112,  645 

r.  Clever  84,  828 

t>.  Cunninghame  674 

v.  Day  320 

v.  Dungannon  334-336 

T.  Dunwoody  228,  238 

v.  Farr  222 

t>.  Floyd  584,  585 

t>.  Gatewood  574,  576,  579 

v.  Glasgow  Infirmary  694,  701,  704 

D.  Harrington  683 

v.  Isaacs  121  j 


Smith  D.  Kimbell 

r.  Lomaa 

v.  Smith 

v.  Townsend 

».  Tucker 

v.  Van  Ostrand 

v.  Warren 
Smithwick  v.  Hayden 


Section 
68  a 
701 

64,  382,  384 

594 

92 

88 

137,  144,  147 
337 


Smyth  v.  Kinloch  690,  700,  710 

Snow  c.  Cutler  139,  160,  165,  171 

r.  Tucker  139,  165,  171 

Society  for  the  Propagation  of 

the  Gospel  v.  A.  G.  598 

Society  for  Theological  Educa- 
tion r.  A.  G.  269 
Sodor  and   Man,   Bishop  of,   ». 

Derby  14 

Sohier  t>.  Trinity  Church  282,  590 

Somerville  v.  Lethbridge          252,  253, 

654 

Sondes'  Will  428 

Sons  of  the  Clergy  v.  Mose  685 

Southampton  v.  Hertford        463,  465- 

467,  672,  674-676 

Southard  v.  Southard  121  i 

Southard,  Den  d.,  v.  Central  R.  R. 

Co.  307,  309 

South  Eastern  R.  Co.  v.  Associated 
Portland  Cement  Manuf.     279,  316, 
330  a,  330  b,  330  c 

Southern  v.  Wollaston      121,  231,  374 
Southey  v.  Somerville  252,  253 

Southwell  v.  Wade  49 

Sowerby  v.  Coleman  578 

Spaan  v.  Anderson  112 

Spalding's  (The  Prior  of)  Case          47 
Speakman  v.  Speakman    382,  388,  411, 

631 

Spear  v.  Bicknell  586  a 

v.  Fogg  108 

Speese  v.  Schuylkill  River  R.  R. 

Co.  38 

Spencer  v.  All  Souls  College  684 

v.  Marlborough  195,  535 

Sperry  v.  Pond  306 

Spicer  v.  Pope  88,  849 

Spring's  Estate  722  a 

Staacke  ».  Bell  570,  752 

Stackpole  v.  Stackpole  645,  646 

Stafford's  Case  125 

Staines  v.  Maddock  180,  181 

Stair  v.  Macgill  676  a 

Stamford,  Re  455,  468  a 

Stampe  v.  Clinton  33 

Stanley  v.  Colt  282,  590 

v.  Leigh  180,  181,  361 

Staples  v.  Hawes  267 

Starcher  Brothers  v.  Duty     275,  275  a 

Stark's  Will  751 

Starnes  ».  Hill  101,  103,  107 

Starr  v.  Starr  M.  P.  Church  245  I,  593 

State  v.  Brown  40 

v.  Gerard  731 

».  Holmes  605,  610,  751 

v.  McGowen  731 

D.  Rives  51 


XXXV111 


TABLE   OF   CASES   CITED. 


State  v.  Savin 

r.  Warren 

v.  Wanington 

».  Welsh 

v.  Wilson 

State  Bank  v.  State 
Steele'a  Estate 
Stephens,  Re 


Section 
852 
611 
88 
88 
587 
51 
752 
639,  641,  711 


Stephens  v.  Evans     108,  2  14,  340  a,  395 
v.  Gadsden     542,  545,  547,  552  6, 
556 

t.  Stephens    172,  175,  176  a,  186- 
188 

Stephenson  v.  Raines  309 

Steven's  Estate  607 

Succession  769 

Stevens,  Re  209,  232  a,  704 

Stevens  v.  Annex  Realty  Co.     277,  280 

Stevenson  v.  Cloud  23 

v.  Evans  740 

Stewart,  Re  428 

Stewart  t>.  Green  894,  896,  898 

Stewart's  Estate,  Re  607 

Stickney's  Will,  Re  631,  633 

Stille's  Appeal  717,  718 

Stirling  v.  Urquhart  215  a 

Stiver's  Estate  718 

Stock  v.  Stipe  306 

Stoller  v.  Doyle  68  a 

Stone  v.  Bradlee  353 

».  Forbes  510 

r.  Framingham         40  (2  a),  603  i 

v.  Hpughton  282 

v.  Nicholson  214 

Stonley  v.  Bracebridge  137 

Storrs  v.  Benbow  389 

».  Burgess  101,  114,  118 

Storrs     Agricultural     School     v. 

Whitney  597,  598,  739 

Stout  v.  Stout      215  a,  232,  249  a,  395 

Strain  v.  Sweeny  68  a 

Stratford  c.  Powell  365 

Stratheden,  Re  214,  606  a 

Strathmore  v.  Strathmore  755,  757,  759 

Strickland  v.  Weldon  685 

Stringer's  Estate  231 

Stringer  v.  Young  107 

Stroud  v.  Norman  540 

Stuart  v.  Babington  526,  964 

v.  Bruere  676  a 

t>.  Cockerell    207,  232,  249  a,  277, 

382,  631 

t>.  Easton  23,  26,  38 

Stubbs  ».  Sargon  894 

Sudeley,  Re  478,  509  g 

Suir  Island  School,  Re  590 

Sulley  v.  Barber  108 

Summers's  Trusts  215  a 

Sumner  v.  Westcott  389,  739 

Suttie  r>.  Suttie  757 

Sut  ton's  Hospital,  Case  of  61 

Sutton  v.  Hoflowell  92 

v.  Praddock  93 

Swaffield  v.  Orton  120 

Swain,  Re  607,  678,  896,  898 

Swasey  r.  Am.  Bible  Society    607,  683 


Section 

Sweet  c.  Anderson  230 

Sweeting  v.  Sweeting  205 

Swift  v.  Easton  Beneficial  Society    896 
v.  Heirs  17 

Swinburne  Petitioner  310  a 

Switzer  c.  Rochford  209,  275,  279 

Swyft  v.  Eyres  17 

Sykes  t>.  Sykes  469,  470,  471,  472 

Sympson  v.  Sothern  137 

Symes  v.  Byrnes  924 

Syms  v.  Mayor  230 

T. 

Taber  c.  Packwood  88 

Taft  v.  Taft  112 

Tainter  v.  Clark  678 

Taite  v.  Swinstead  490,  497,  499  509  j 
Talbot  v.  Jevers  120,  704,  705 

v.  Snodgrass  846 

Talbott  v.  Grace  587 

Taltarum's  Case  19,  141,  156 

Tanistry,  Case  of  577 

Tanner,  Doe  d.,  v.  Dorvell  112 

Tappan's  Appeal  310  a,  623,  624,  739 
Tarrant  v.  Backus  120, 121  c,  437,  739 
Tatham  v.  Vernon  121 

Tatton  v.  Mollineux  153 

Taylor's  Settlement  Trusts,  Re  215  a 
Taylor's  Trust  215  a 

Taylor  Orphan  Asylum,  Re  607 

Taylor  v.  Biddal       160,  167,  172,  175, 
186,  334 

v.  Blake  631 

v.  Cedar  Rapids  &c.  R.  R.  Co.  306 

v.  Eatman  64 

v.  Frobisher  118,  121,  374,  388,631 

v.  Haygarth  205 

d.  Atkyns  v.  Horde  197 

v.  Sutton  308 

v.  Taylor  449 

v.  Wharton  172 

Teague's  Settlement,  Re        435,  437  a 

Tench  v.  Cheese  686,  690,  691 

Tewart  v.  Lawson  676,  710 

Tharp  v.  Fleming  590 

Thatcher's  Trusts     252,  253,  340,  374 

Thatcher  v.  Omans  65 

Thaw  v.  Ritchie  108 

Thayer  v.  McGee  39,  42 

v.  Wellington  248 

Thellusson  v.  Woodford    133,  182,  183, 

185,  190,  198,  199,  216,  217,  221, 

633,  686 

Theological  Education,  Society  for, 

t>.  A.  G.  310  a,  593 

Thomas  v.  Castle  88,  739 

c.  Gregg      245  e,  245  I,  395  a,  522 

v.  Hamilton  24 

v.  Howell  683 

t>.  Thomas  110,  214,  746 

v.  Wilberforce  374 

Thompson,  Re  120,  523  c,  537 

Thompson  v.  Pew  963 

v.  Simpson  529 

v.  Thompson  656 


TABLE    OF    CASES    CITED. 


XXXIX 


Section 

Thompson,  Doe  d.,  r>.  Gibson  23 

Thomson  r.  Livingston     241,  522,  750 
v.  Ludington  108 

v.  Shakespear  896,  898 

Thorndike  v.  Loring       242,  249  6,  674 
Thornton  v.  Bright  433,  434 

v.  Natchez  282 

Thouron's  Estate  718 

Thrasher  v.  Ingram  88 

Threadgill  v.  Ingram  88,  848 

Throckmerton  v.  Tracy  17 

Thynne,  Re  86  a,  833 

Tillman  v.  Sinclair  93 

Timber-lake  v.  Graves  848 

Timms  v.  Potter  92 

Tincher  v.  Arnold  607 

Tingier  v.  Chamberlin  739 

Tinkham  v.  Erie  R.  Co.  307 

Tinning  and  Weber,  Re  215  a 

Tin-ell's  Case  63 

Tissen  v.  Tissen  84,  828,  830 

Tobey  v.  Moore  281,  305,  310  a 

Todhunter  v.  D.  M.  I.  &  M.  R.  Co. 

209,  736 

Toland  v.  Toland  752 

Tollemache  v .  Coventry     186,  401 , 405, 

407,  407  a,  407  6 

Tomkyns  t>.  Blane          545,  549,  552  b 
Toms  v.  Williams  209,  751 

Tongue  ».  Nutwell  248 

Toole  v.  Hamilton  898 

Torpy  D.  Betts  751 

Torrance  v.  Torrance  40 

Tower's  Estate,  Re  751 

Towle  v.  Delano  215  a 

v.  Doe  237,  245  a 

v.  Remsen  307 

Towns  v.  Wentwprth  656 

Townshend  v.  Windham  560 

Trafford  v.  Trafford  334,  364 

Trafton  v.  Hawes  57,  65,  67 

Trash  v.  Wood  656 

Treat's  Appeal  621 

Tredennick  v.  Tredennick        521,  524, 
526,  957 

Tregonwell  v.  Sydenham   248, 419, 422, 
447,  672 

Trevanion,  Re  672 

Trevelyan  v.  Trevelyan  275, 454  a,  467, 

505 

Trickey  ».  Trickey  378,  700,  707 

Trinity  Church  v.  Baker  245  c 

Tritton,  Re  86  a,  833,  855 

Trogdon  v.  Murphy  88 

Trollope  v.  Routledge  529 

Troutman  p.  De  Boissiere     245  b,  896, 
898,  899 

Trowbridge  v.  Coss  107 

v.  Metcalf  259,  265 

v.  Trowbridge  259,  265 

Trufant  v.  Nunneley  751 

Trustees  v.  Guthrie  616 

Trustees  Co.  v.  Bush  679  a 

v.  Jenner  428,  437 

Trustees  Mclntire  School  c.  Zanes- 

ville  Canal  Co.  607 


Tucker  v.  Boswell 

v.  Stevens 
Tulk  v.  Moxhay 
Turley  v.  Turley 
Turner's  Estate,  Re 
Turney,  Re 


Section 
676  a 
91 
280 
740 
5306 
631,  633 


Turvin  v.  Newcome      444,  467,  468  a, 
505,  674,  688 

Tweedie,  Re  478,  490,  499,  509  c 

Tyler,  Re  311  a,  603  c,  603  d 

Tyler  v.  Fidelity  Trust  Co.  737 

Tyrrell's  Estate,  Re   230  oo,  230  b,  275, 
279,  593 

Tyson  r.  Blake  846 

v.  Smith  677,  580 

v.  Tyson  751 

U. 

Underbill  o.  Saratoga  R.  R.  Co.  282, 

307 

Union  Canal  Co.  c.  Young  38 

United  States  v.  Repentigny  22 

United  States  Fidelity  Co.  v. 

Douglas'  Trustee  395,  430  b,  737 
University  of  London  Medical 

Sciences  Inst.  Fund  v.  A.  G.,  Re  605 
Upington  v.  Corrigan  282,  306 

Upwell  v.  Halsey  84 


V. 


Vachel  v.  Vachel  84,  828,  830 

Vanderplank  v.  King       231,  644,  645, 

649  650 

Vander  Volgen  v.  Yatea  '  681 

Van  Driele  v.  Kotvis  751 

Van  Gallow  ».  Brant  751 

Van  Kleeck  v.  Reformed  Dutch 

Church  248 

Vannerson  v.  Culbertson  852 

Van  Nostrand  v.  Moore  231 

Van  Rensselaer  v.  Ball  30,  309 

r.  Barringer  309 

v.  Dennison  30,  309 

v.  Hays  24,  25 

T>.  Slingerland  309 

v.  Smith  309 

v.  Snyder  309 

Van  Syckel  v.  Johnson  898 

Van  Tilburgh  v.  Hollinshead  108 

Varlo  v.  Faden  710 

Vashon  v.  Vashon  108 

Vass  v.  Hicks  92 

Vaughan  v.  Burslem  365 

Vausant  r>.  Roberts  263  6 

Vawdry  v.  Geddes  374,  674 

Veizy  r.  Pinwell  162 

Vernon  v.  Inabnit 

Vezey  v.  Jamson  894 
Vicars  Choral  de  Litchfield  v.  Ayres    17 

Vice  v.  Thomas  588 

Vickers  v.  Scott  676  a 

Vidler  v.  Parrot  215  a 

Vigor  r.  Harwood  676  a 


xl 


TABLE    OF    CASES    CITED. 


Section 

Vincent's  (Lee)  Case  151 

Vine  P.  Raleigh  699  b 

Vinson  v.  Vinson  68  o 

Von  Brockdorff  v.  Malcolm    389, 523  c, 

537 
Voris  v.  Renshaw  308,  309 


W. 

Waddy  v.  Sturman  88,  848,  849 

Wade-Gery  p.  Handley  690 

Wagner  v.  Wagner  121  c 

Wahl's  Estate  121,  718 

Wailea  v.  Daniell  769 

Wainman  v.  Field  248,  409,  820 

Wainwright  v.  Miller  209,  232 

Wakefield  v.  Van  Tassell  280,  310  a  (6) 
Waldo  v.  Caley  683 

p.  Cumminga  88 

Waldron,  Re  311 

Walker,  Re  711 

Walker  v.  Alverson  108 

Walkerly,  Re  202,  752 

Wallace  p.  Foxwell  121  c 

r>.  Hannstad  23,  26,  38 

Waller  v.  Hanger  685 

Wallinger  v.  Wallinger  652 

Wallis  P.  Arden  151,  153 

p.  Freestone  498 

r.  Sol.  Gen.  for  New  Zealand     607 
p.  Wallis  57 

Walpole  v.  Conway  112 

Walsh's  Trusts,  Re  526  c 

Walsh  p.  Secretary  of  State  for 

India  329 

Walsingham's  Case  34 

Ward  P.  Audland  77 

p.  Turner  77 

Warden,  Re  374 

Ware  P.  Cumberlege  685 

p.  Polhill  483,  487,  495,  497 

Waring  p.  Coventry  498 

Wannan  p.  Seaman  161 

Warner  p.  Bennett  307 

Warren's  Trusts,  Re  561  b,  661  d,  661  e 
Wartenby  P.  Moran  309 

Warter  p.  Hutchinnon  33  (9) 

Warwick  P.  Gerrard  62,  510 

Washborn  p.  Downs  269,  305 

Washington's  Estate  717,  718 

Wastneys  P.  Chappell  227 

Waters  p.  Lffley  584 

Watkins,  Re  378,  385,  631 

Watrous  p.  Allen  282,  307 

Watson,  Re  232,  242,  249  6 

Watson  P.  Young     340  a,  340  b,  349  b 
Watt  P.  Wood  711 

Weatherall  p.  Thornburgh       120,  687, 
694,  701,  704 

Weatherhead  p.  Stoddard  120 

Webb  P.  Oldfield  898 

p.  Sadler  440,  477,  527,  634 

p.  Webb  697 

Webber  p.  Webber  751 

Webster  p.  Bodington       380,  382,  391 


Section 

Webster  p.  Morria      23,  607,  683,  751, 

916 

v.  Parr  385 

Weed  P.  Woods  40 

Weekly  p.  Wildman  576,  579 

Weeks  P.  Hobson  590 

Weinmann's  Estate  718 

Welcden  v.  Elkington        80,  151,  152, 
808,  809,  813,  815,  826,  827 
Welch  P.  Kinard  91 

Weld  P.  Traip  70 

Wellbeloved  p.  Jones  685 

Welles  P.  Olcott  19 

Wellington  p.  Wellington  33 

Wellock  P.  Hammond  138 

Wells  v.  Heath  590,  593 

p.  Olcott  663 

p.  Wells  367 

Welsch  P.  Belleville  Bank  88,  95 

Welsh  P.  Foster  57 

p.  Woodbury  112 

Wenmoth's  Estate,  Re  641 

Wentworth  P.  Fernald  607 

West  P.  Knight  685 

Westby,  Jack  d.,  p.  Fetherstone      447 
Westcott  P.  Cady  88 

Wetherell  p.  Wetherell  641 

Wharton  p.  Masterman  679  a 

Wheeler  p.  Fellowes  259,  269,  739 

p.  St.  Johnsbury  107 

P.  Smith  616 

Whipple  P.  Fairchild  118 

Whistler  p.  Webster         541,  558,  559, 

561  e 

Whitaker  ».  Burhans  577 

Whitbread  p.  St.  John  639 

Whitby  P.  Mitchell  125,  133,  199, 

298  o,  298  b,  298  c,  298  e,  298 1,  325  a, 

521,  522,  530  d,  931, 932, 945,946,  947 

Whitby  p.  Von  Luedecke     108,  298  t, 

522 

White's  Estate  717,  718 

White's  Trusts,  Re  605 

White  P.  Alien  249  d,  739 

v.  Commissioner  for  Stamps 

523  6,  523  c,  537 

p.  Fisk  621 

v.  Hale  613,  731 

t.  Howard  259,  267,  609,  624 

p.  St.  Barbe  529 

v.  Summers         338,  925,  926,  927 

p.  University  620 

p.  White  662,  552  6,  683 

Whitehead  p.  Bennett       374,  431,  880 

p.  Watson  769 

Whitesides  P.  Cooper  108 

Whitman  p.  Lex  626,  678 

Whitney  p.  Dodge  263  a,  752 

p.  Groo  215  a 

Whitten,  Re  379,  385 

Whittenton  Manf .  Co.  t>.  Staples 

586  a 

Whitting  P.  Whitting  298  hh,  947 

Whitworth  P.  Stuckey  14 

Widdow's  Trusts  215  a 

Widmore  p.  Woodroffe  683 


TABLE    OF   CASES    CITED. 


Xli 


Section 

Wier  v.  Simmons  282 

Wiggin  v.  Perkins  103 

Wiggins  Ferry  Co.  o.  Ohio  &  Miss. 

R.  Co.  39,  279 

Wilberforce    Educational    Insti- 
tute c.  Holden  685 
Wilbraham  v.  Snow  77 
Wilcox,  Matter  of                              107 
Wilde  ».  Bell                                       739 
Wildes  r.  Davies                        701,  711 
Wilford  v.  Wilford                               138 
Wilkes  v.  Leuson                                   65 
Wilkinson's  Trusts,  Re     896,  898,  899 
Wilkinson  v.  Duncan      389,  623  c,  537 
Will  v.  Fuller                                        607 
Willerton  v.  Stocks                             641 
William  r.  Florence                             127 
Williams's  Estate                               717 
Williams  v.  Ash                                    228 
v.  First  Presbyterian  Soc.   68,  607 
v.  Gaston  14 
t>.  Herrick                          237  b,  676 
v.  Kershaw                                   894 
v.  Lewis                               362,  676 
v.  Pearson                                     612 
v.  Teale               231,  232,  374,  650 
v.  Williams                                  678 
Williamson's  Estate            375  a,  722  a 
Williamson  v.  Mason                            91 
Williman  v.  Holmes                            112 
Willingale  v.  Maitland                        581 
Willion  v.  Berkley                                  14 
Willis,  Doe  d.,  v.  Martin                   112 
Willson  v.  Cobley              121,  256,  374 
Wilmer's  Trusts,  Re               221  o,  410 
Wilmoth  D.  Wilmoth                           619 
Wilson  v.  Cockrill           91,  95,  97,  847 
r.  Lynt                                          678 
r.  O'Dell                                      751 
r.  Wilson   308,  389,  441,  691,  695, 
699,  704 

Winchester's  Estate  607 

Winchester,  Bishop  of,  v.  Prior  of 

St.  John  46 

Winsor,   Dean  &  Canons  of,  v. 

Webb  43,  49 

Winsor  t>.  Mills  121  t,  269,  275  a, 

509  m,  609  n 

Winter  t>.  Winter  77 

Winter,  Doe  d.,  c.  Perratt  447 

Wirth  v.  Wirth  121  t 

Wise,  Re  232,  242,  249  b,  676 

Witham  t>.  Brooner  68  a 

v.  Vane  329 

Withers  t>.  Iseham  576 

r.  Withers  702 

Wolf's  Estate  633 

Wolfe  c.  Hatheway  633,  739 

Wollaston  v.  King    258,  477,  521,  526, 

526  o,  531,  541,  556,  557,  661  o, 

661  d,  661  e,  957 

Wollen  v.  Andrews  657 

Wolley  v.  Jenkins  497,  499 

Woman's  Foreign  Miss.  Soc.  t>. 

Mitchell  246  c,  282 

Wombwell  v.  Hanrott  630 


Section 

Wood's  Case  136 

Wood,  Re        205,  214,  413,  509  h,  673 

Wood  v.  Cheshire  40 

r.  Drew  205,  209 

r.  Griffin    232,  249  a,  298,  647,  661 

v.  Humphreys  228 

t>.  Reignold  136,  146 

v.  Robertson  107,  108 

c.  Sanders  132,  161,  176  a 

c.  White  481,  498,  499 

c.  Wood  265 

Woodall  v.  Clifton     230  aa,  230  b,  275, 

329 

Woodbridge  r.  Winslow  397 

Woodcock  v.  Renneck  112 

v.  Woodcock  161,  808,  813 

Woodgate  v.  Unwin  380 

Woodland  v.  Wallis  848 

Woodlet  v.  Drury  136,  143 

Woodliff  v.  Drury  136,  143 

Woodman  v.  Woodman  112 

Woodruff  v.  Marsh        624,  624  a,  633, 
678,  679  a 

v.  Pleasants  370 

Woodworth  v.  Payne  51,  307 

Woolmore  v.  Burrows  418 

Woolridge  c.  Woolridge  548,  550- 

552,  552  b,  553,  559 
Wooster  t>.  Gt.  Falls  Manf.  Co.  39 
Wortes  c.  Clifton  77 

Worthing  Corporation  t>.  Heather 

275,  330  a,  594 

Wright's  Estate  718 

Wright,  Re  523  c,  561  a 

Wright  o.  Goff  529 

v.  Hill  121 

c.  Hobert  682,  685 

v.  Linn  682 

r.  Wilkin  282 

Wright  d.  Plowden  t>.  Cartwright      71, 

806,  812 

Wrightson,  Re  925,  926,  930 

Wrightson  v.  Macaulay  447 

Wrotesley  v.  Adams  17 

Wyman  v.  Brown  67 

Wynch,  Ex  parte  647 

Wyth  t>.  Blackman  361 


Y. 

Yarborough  v.  West  96 

Yard,  Appeal  of  691 
Yeap  Cheah  Neo  c.  Ong  Cheng 

Neo  200,  898 

Y.  B.  22  Edw  I.  p.  641  21 

9  Edw.  III.  25,  26  44,  46 

10  Edw.  III.  26,  pi.  52  14 

10  Edw.  III.  45  127 
18  Edw.  III.  39,  pi.  34  128 
22  Edw.  III.  19  123 
22  Edw.  III.  19,  pi.  86  14 
24  Edw.  III.  29,  pi.  17  128 
40  Edw.  III.  9  b  10,  11 
49  Edw.  III.  16  124 

11  Ass.  8.  35 


xlii 


TABLE    OF    CASES    CITED. 


Section 

Y.  B.  12  AM.  pi.  5  126 

38  Asa.  pi.  3  124 

7  Hen.  IV.  16,  pi.  9  128 

4  Hen.  VI.  19  b  35 

9  Hen.  VI.  23,  24       124,  129,  134 
11  Hen.  VI.  12,  13  124 

19  Hen.  VI.  23  124 

19  Hen.  VI.  24  b  124 

21  Hen.  VI.  Hil.  pi.  21  35 

35  Hen.  VI.  56,  57  46 

37  Hen.  VI.  30     80,  83,  148,  823, 

826 

38  Hen.  VI.  38  17 
2  Edw.  IV.  26                              77 

6  Edw.  IV.  7,  pi.  18  205 

7  Edw.  IV.  10-12  44,  47 
7  Edw.  IV.  12  a           33,  776,  777 

7  Edw.  IV.  26  576 

8  Edw.  IV.  18,  19  577 

11  Edw.  IV.  4,  pi.  7  47 

12  Edw.  IV.  3  a  47 
12  Edw.  IV.  19,  pi.  25        19,  141 


Y.  B.  15  Edw.  IV.  29        576, 
15  Edw.  IV.  32 
18  Edw.  IV.  3 
21  Edw.  IV.  64 
2  Hen.  VII.  13 
8  Hen.  VII.  3  b 

10  Hen.  VII.  12 

11  Hen.  VII.  pi.  25 
13  Hen.  VII. 

27  Hen.  VIII.  10,  pi.  23 

27  Hen.  VIII.  29,  pi.  20 
Young's  Settlement,  Re 
Young  v.  Collins 

r.  Lutheran  Church 

o.  Mahoning  County 

D.  Snow 

v.  Young 
Young  Men's  Christ.  Assoc. 

Horn 


Z. 


Zeisweiss  v.  James 


Section 

677,  579 

579 

576 

576 

130 

17 

123 

35 

35 

43 

33,34 

120 

585 

724 

40 

121  h 
95,  96 

751,  916 


626 


THE  EULE  AGAINST  PEKPETUITIES. 


CHAPTER  I. 
INTRODUCTION. 

§  1.  CERTAIN  transfers  of  rights  in  their  nature  alienable 
the  law  forbids.  Sometimes  the  reason  of  this  inhibition  is  the 
character  of  the  person  who  is  to  make  the  transfer;  thus  an 
infant  cannot  convey  his  land.  Sometimes  it  is  the  character 
of  the  person  who  is  to  receive  the  transfer;  thus  Mort- 
main Acts  forbid  devises  to  charitable  corporations.  Some- 
times it  is  the  nature  of  the  right;  thus  the  right  to  recover 
damages  for  a  libel  is  not  assignable.  And  sometimes  the  trans- 
fer is  to  take  effect  at  too  remote  a  period;  thus  a  bequest  to 
those  descendants  of  the  testator  who  shall  be  living  fifty  years 
after  his  death  is  bad.  The  rule  of  the  Common  Law,  which 
determines  this  last  class  by  fixing  the  limit  beyond  which 
future  interests  cannot  be  created,  is  called  the  Rule  against 
Perpetuities. 

§  2.  The  Rule  against  Perpetuities  is  often  spoken  of  as 
aimed  at  restraints  upon  alienation.  Now  it  is  true  that 
future  interests,  to  confine  the  creation  of  which  within  pre- 
cise limits  is  the  object  of  the  Rule,  make  the  interest  of  the 
present  owner  of  an  estate  less  marketable,  and  therefore  may 
be  loosely  said  to  restrain  alienation;  but,  speaking  accurately, 
a  future  interest  does  not  render  a  present  interest  inalienable. 
The  present  owner  has  less  to  convey  than  he  would  have  if  the 

1 


2  THE  RULE  AGAINST  PERPETUITIES. 

future  interest  did  not  exist;  but  all  that  he  has  he  can  convey 
freely.  Suppose  land  is  devised  to  A.  and  his  heirs,  with 
an  executory  devise  over  should  he  die  unmarried,  A.  can  sell 
his  interest,  and  in  the  hands  of  the  purchaser  the  land  is  sub- 
ject to  precisely  the  same  devise  over  as  it  was  in  the  hands  of 
A.,  no  more  no  less.1  The  misconception  has  been  aided  by 
the  name  given  to  the  Rule.  It  would  have  been  better  had 
it  been  called  the  Rule  against  Remoteness.2  But  usage  has 
settled  the  name  as  the  Rule  against  Perpetuities.3 

§  2  a.  The  system  of  rules  disallowing  restraints  on  alien- 
ation, and  the  Rule  against  Perpetuities  are  the  two  modes 
adopted  by  the  Common  Law  for  forwarding  the  circulation 
of  property  which  it  is  its  policy  to  promote.  The  rules  dis- 
allowing restraints  against  alienation  and  the  Rule  against 
Perpetuities  have,  therefore,  it  is  true,  the  same  ultimate 
end,  but  they  serve  that  end  by  different  means.4 

§  3.  The  practice  of  confounding  the  rule  against  remote- 
ness with  the  rules  disallowing  restraints  on  alienation 5  has 
led  to  grave  errors,6  as,  for  example,  (1)  that  future  interests, 
if  alienable,  cannot  be  obnoxious  to  the  Rule  against  Perpetu- 
ities; 7  (2)  that  a  trust  to  pay  the  income  of  property  to  A. 
and  his  heirs  violates  the  Rule.8 

§  4.  As  the  Rule  against  Perpetuities  is  the  law  limiting 
the  time  within  which  future  interests  can  be  created,  we  must 
first  see  what  future  interests  can  be  created,  apart  from  any 

1  Of  course,  if  the  contingency  296,   note.     1  Tiffany,  Real  Prop., 

on  which  the  future  interest  is  to  §  152;    1  Perry,   Trusts   (6th  ed.) 

arise  is  an  alienation  by  the  pres-  377,    note;    42    Am.     Law    Rev. 

ent  owner,  then  the  future  interest  112. 

may  be  truly  called  a  restraint  on  4  See  §§  118  a  et  seq.,  post. 

alienation.    Such  a  case  is  the  gift  s  As  to  these  latter  rules  see  the 

of  a  life  estate  to  A.,  until  he  at-  author's  essay,  "Restraints  on  the 

tempts  to  part  with  it,  and  then  Alienation  of  Property."     (2d  ed.) 

to  B.  Boston,  1895. 

*  This  suggestion  is  due  to  the  •  See  §  118  a. 

late  Mr.  Justice  Gray  of  the  United          7  See  Chap.  VII.,  §§  268  et  seq.,. 

States  Supreme  Court.  post. 

1  See  1  Jarman,  Wills  (6th  ed.)  •  See  §§  235  et  seq.,  post. 


INTRODUCTION.  3 

question  of  remoteness.  We  shall  find  that  originally  the 
common  law  subjected  their  creation  to  many  restrictions,  but 
that  these  restrictions  have  been  gradually  so  far  removed 
that  the  Rule  against  Perpetuities  is  now  almost  the  only 
legal  check  upon  the  granting  of  future  interests. 


4  THE   RULE  AGAINST  PERPETUITIES. 


CHAPTER  II. 
FUTURE   INTERESTS. 

§  5.  IN  this  chapter  it  is  proposed  to  treat  of  future  estates 
and  interests  in  property,  and  of  the  restrictions  on  their 
creation  other  than  the  Rule  against  Perpetuities. 

I.  REAL  ESTATE. 

A.  LANDS  OF  FREEHOLD  TENURE. 

1.  Common  Law. 

§  6.  No  seisin  or  ownership  of  a  freehold  estate  in  corporeal 
hereditaments  of  freehold  tenure  can  begin  in  futuro.  This 
is  owing  to  the  fundamental  doctrine  of  the  feudal  law,  that 
such  seisin  can  be  given  only  by  a  present  livery,  actual  or 
constructive. 

§  7.  The  future  freehold  interests  in  real  estate  allowed  by  the 
common  law  are:  (1)  Remainders  and  Reversions;  (2)  Interests 
arising  on  Entry  for  Condition  broken;  (3)  Possibilities  of 
Reverter;  (4)  Curtesy  and  Dower;  (5)  Interests  less  than 
Ownership  in  Land  of  others;  and  (6)  Interests  by  Escheat. 

§  8.  (1)  Remainders  and  Reversions.  —  Though  seisin  of  a 
freehold  estate  can  be  given  only  by  livery,  yet  the  ownership 
may  be  cut  up  into  several  successive  life  estates,  either  with 
or  without  an  ultimate  estate  in  fee.  The  first  life  estate  is 
called  a  particular  estate;  the  succeeding  life  estates,  and  the 
ultimate  estate  in  fee,  if  any,  are  remainders.1  The  essential 
qualities  and  the  restrictions  on  the  creation  of  a  remainder 

1  Each  remainder  for  life  is,  in  mainders,  also  a  particular  estate. 
its  relation  to  the  following  re-  See  §  100,  post. 


FUTURE  INTERESTS.  5 

are  that  it  must  be  created  by  the  same  conveyance  as  the 
previous  freehold  estate  or  estates,  and  that  it  must  become 
a  present  freehold  estate  on  the  expiration  of  the  previous 
freehold  estate  or  estates  as  originally  limited.  A  remainder 
cannot  cut  short  or  overlap  the  preceding  estate,  and  no  in- 
terval of  time  must  separate  it  from  such  estate.  The  particu- 
lar estate  and  the  remainders  form  an  unbroken  series.  Each 
remainder  is  said  to  be  supported  by  the  preceding  estates. 
There  can  be  no  remainder  after  a  fee  simple.  A  freehold 
estate  subject  to  a  term  for  years  is  not  a  future  estate  of 
freehold  at  all,  but  a  present  estate  of  freehold;  the  holder 
of  such  estate  has  the  present  seisin.1 

§  9.  Remainders  are  either  vested  or  contingent.  A  re- 
mainder is  vested  if,  at  every  moment  during  its  continuance, 
it  becomes  a  present  estate,  whenever  and  however  the  pre- 
ceding freehold  estates  determine.  A  remainder  is  contingent 
if,  in  order  for  it  to  become  a  present  estate,  the  fulfilment  of 
some  condition  precedent,  other  than  the  determination  of  the 
preceding  freehold  estates,  is  necessary.  If  an  estate  is  given  to 
A.  for  life,  remainder  to  his  eldest  born  son  in  fee,  the  remain- 
der is  contingent  until  the  birth  of  A.'s  first-born  son,  and 
then  vests.  The  distinction  between  vested  and  contingent 
remainders  is  developed  in  the  following  chapter. 

§  10.  Unless  a  contingent  remainder  becomes  vested  on  or 
before  the  determination  of  the  preceding  vested  freehold 
estates,  it  can  never  become  a  present  estate:  it  has  perished. 
It  makes  no  difference  whether  the  preceding  estates  have  ended 
by  reaching  the  limit  originally  imposed  on  them,  or  whether 
they  have  been  cut  short  by  merger,  forfeiture,  or  otherwise. 
It  has  been  doubted  whether  the  common  law  originally  allowed 
of  contingent  remainders;  they  were,  however,  recognized  as 
valid  as  early  as  the  fifteenth  century.2 

§  11.  A  future  estate  may  be  indirectly  created  by  giving 
livery  of  seisin  for  one  or  more  Me  estates,  without  an  ultimate 

1  ChaUis,  Real   Prop.    (3d   ed.)          »  See  §§  100,  134,  post. 
80,  99.     §  970,  note  3,  post. 


6  THE   RULE   AGAINST  PERPETUITIES. 

remainder  in  fee.  The  estate  remaining  in  the  former  owner 
ready  to  come  into  possession  on  the  termination  of  the  life 
estate  or  estates  is  a  reversion.  The  same  result  is  reached 
when  an  ultimate  remainder  in  fee  is  contingent.  Until  it 
vests,  there  is  a  reversion  hi  the  feoffor  and  his  heirs.1 

§  12.  (2)  Interests  arising  on  Entry  for  Condition  broken. — 
Future  interests  sometimes  arose  from  conveyances  being  on 
condition,  implied  or  express.  All  estates  were  conveyed  on  the 
implied  condition  that  the  tenants  should  not  deny  tenure. 
Express  conditions  might  also  be  attached  to  a  conveyance. 
On  breach  of  a  condition  the  feoffor  had  a  right  to  enter;  but, 
until  entry,  the  estate  remained  with  the  feoffee.  The  right  of 
entry  was  inalienable,  and  therefore  advantage  of  a  condition 
could  be  taken  only  by  the  feoffor  and  his  heirs.2 

§  13.  (3)  Possibilities  of  Reverter.  —  Some  estates  were  ter- 
minable by  special  or  collateral  limitations;  for  instance,  an 
estate  to  A.  till  B.  returned  from  Rome;  or  an  estate  to  A. 
and  his  heirs  until  they  ceased  to  be  tenants  of  the  Manor  of 

1  When  a  conveyance  is  by  way  Com.  257-260;  Bohon  v.  Bohon,  78 

of  use  or  devise,  there  is,  unques-  Ky.  408. 

tionably,  during  the  contingency  of          The   transfer  in  futuro  of    re- 

a  remainder  in  fee,  a  reversion  in  maindere    and    reversions    already 

the  grantor  or  devisor  and  his  heirs;  existing  is  considered  §  17,  post. 
and  the  prevailing  opinion  seems  to          *  See    Ashuelot    Nat.    Bank    v. 

be  the  same  way  upon  a  feoffment  Keene,  74  N.  H.  148.    In  Massa- 

at  common  law.    Plunket  v.  Holmes,  chusetts  it  has  been  held  that  the 

1  Lev.  11;  1  Sid.  47;  T.  Raym.  28.  right  of  entry  cannot  pass  by  deed, 

Purefoy  v.  Rogers,  2  Wins.  Saund.  Rice  v.  Boston  &  Worcester  R.  R. 

380,  382,  and  note.    Carter  v.  Bar-  Co.,  12  Allen  141;  but  it  has  been 

nardiston,  1  P.  Wms.  505,  511-518.  held,  apparently    on    a   misunder- 

Egerton  v.  Massey,  3  C.  B.  N.  s.  standing  of  Doe  v.  Scott,  3  M.  & 

338,  358.     Co.  Lit.  191  a,  Butler's  S.  300,  and  Jones  v.  Roe,  3  T.  R. 

note.      Fearne,    C.    R.    360-364.  88,  that  it  can  be  devised.    Hayden 

Wms.  Settlements,  207-210.    Wms.  v.  Stoughton,  5  Pick.  528.    Austin 

Real    Prop.    (22d    ed.)    363.     See  v.  Cambridgeport  Parish,  21  Pick. 

Pinkney  v.  Weaver,  216  111.   185;  215.    On  breach  of  a  condition  at- 

Bigley  v.   Watson,  98  Tenn.  353.  tached  to  an  estate  for  years,  the 

Contra,  see  40  Edw.  III.  9  6;  Co.  lessor  may  put  an  end  to  the  estate 

Lit.  342  6;  2  Prest.  Abs.  101-107;  without  entry.     Leake,  Land  Law, 

Cornish  on  Rem.  175-178;  4  Kent,  226. 


FUTURE   INTERESTS. 


Dale.1  On  the  happening  of  the  contingency,  the  feoffor  was 
in  of  his  old  estate  without  entry.  The  estate  was  not  cut 
short,  as  it  would  have  been  by  entry  for  breach  of  condition, 
but  expired  by  the  terms  of  its  original  limitation.  After  a 
life  estate  of  this  kind  a  remainder  could  be  limited.  After 
such  a  fee  it  has  commonly  been  supposed  that  there  could  be 
no  remainder; 2  but  there  was  a  so-called  possibility  of  reverter 
to  the  feoffor  and  his  heirs  which  was  not  alienable.3 

§  14.  An  estate  in  "fee  simple  conditional,"  so  called,  was 
by  far  the  most  common  of  these  estates  with  special  limita- 
tions.4 This  was  an  estate  to  the  donee  and  the  heirs  of  his 
body  (either  all  the  heirs  of  his  body  or  some  special  class  of 


1  See  Co.  Lit.  27  a,  Harg.  note 
157;  Challia,  Real  Prop.  c.  17. 

1  See  Buckhurst  Peerage,  2  Ap. 
Cas.  1,  23,  24.  But  cf.  §  14,  post, 
note  5. 

1  See  the  following  section.  In 
Pennsylvania,  where  possibilities  of 
reverter  have  been  assumed  to  still 
exist  (see  §  38,  post),  the  Court  seems 
also,  in  Scheetz  v.  Fitzwater,  5  Pa. 
126,  to  have  thought  them  assign- 
able, and  has  now  so  held  in  Slegel 
v.  Lauer,  148  Pa.  236.  See  §  115  a, 
post. 

4  See  Challis,  Real  Prop.  c.  18; 
2  P.  &  M.  Hist.  Eng.  Law  (2d 
ed.)  14-19;  3  Holdsworth,  Hist. 
Eng.  Law,  95-98;  2  Law  Quart. 
Rev.  276.  Notwithstanding  its 
name,  this  estate  was  one  with 
special  limitation  rather  than  on 
condition.  The  writ  of  formedon 
in  reverter  alleges  no  entry  by  the 
donor;  F.  N.  B.  219;  Rast.  Ent. 
375;  and  this  writ  was  the  one  in 
use  at  the  common  law.  See  St. 
De  Donis,  13  Edw.  I.  c.  1,  §  4. 
Cf.  Wfflion  v.  Berkley,  1  Plowd. 
223,  242;  2  P.  &  M.  Hist.  Eng.  Law 
(2d  ed.)  23,  note  2,  28;  19  Am.  & 


Eng.  Enc.  of  Law  (1st  ed.),  Real 
Property,  1054.  Mr.  Butler,  in  his 
note  to  Co.  Lit.  241  a,  says  that  an 
estate  in  fee  simple  conditional  was 
an  estate  on  condition,  but  that  he 
is  wrong  is  shown  by  the  assertion 
which  he  goes  on  to  make,  viz.: 
that  though  the  tenant  died  with- 
out leaving  issue  surviving,  yet 
the  husband  could  have  curtesy 
or  the  wife  dower.  Mr.  Butler 
states  the  general  rule  to  be  "that 
where  the  fee,  in  its  original  crea- 
tion, is  only  to  continue  to  a  certain 
period,  the  wife  is  to  hold  her  dower, 
and  the  husband  his  curtesy,  after 
the  expiration  of  the  period  to  which 
the  fee  charged  with  the  dower  or 
curtesy  is  to  continue;  but  that 
where  the  fee  is  originally  devised 
in  words  imparting  a  fee  simple,  or 
fee  tail  absolute  and  unconditional, 
but  by  subsequent  words  is  made 
determinable  upon  some  particular 
event;  there,  if  that  particular  event 
happens,  the  wife's  dower  and  the 
husband's  curtesy  cease  with  the 
estate  to  which  it  is  annexed;" 
"but,"  he  says,  "for  reasons  now 
rather  to  be  guessed  than  demon- 


8 


THE   RULE  AGAINST  PERPETUITIES. 


them),  with  a  provision  that  on  the  failure  of  such  heirs  the 
land  should  revert  to  the  donor  and  his  heirs.     Sometimes 


strated,  this  case  was  made  an  ex- 
ception to  the  general  rule."    The 
true   reason   of   the   allowance   of 
dower  and  curtesy  on  the  determi- 
nation of  a  fee  simple  conditional 
would  seem  to  be  because  such  an 
estate  was  not  an  estate  on  condi- 
tion but  an  estate  with  a  special 
limitation.     The  general  rule  laid 
down  by  Mr.  Butler  appears  to  be 
correct;  it  accords  with  the  declara- 
tion of  Anderson,  C.  J.,  in  Plain  v. 
Sams,  Goldsb.  81,  82:  "that  if  an 
estate  be  determined  by  limitation, 
this  will  not  avoid  a  tenancy  by  the 
curtesy,  but  otherwise  it  is  if  the 
estate  be  determined  by  a  condi- 
tion; for  this  shall  relate  to  the  de- 
feasance of  the  estate."    Thus  there 
is  no  question  that  entry  for  breach 
of  condition  cuts  off  dower.     See 
22   Edw.    III.    19,   pi.   86;   Perk. 
§§  311,  312,  317;  and  on  the  other 
hand  it  has  been  recognized  from 
the  beginning  that  there  is  dower 
after  the  expiration  of  an  estate  tail. 
10  Edw.  III.  26,  pi.  52;  Perk.  §  317. 
Sammes  and  Paynes  Case,  1  Leon. 
167;  s.  c.  sub  nom.  Paine  v.  Samms, 
1  And.  184;  sub  nom.  Paine's  Case, 
8  Co.  34  o;  sub  nom.  Plain  v.  Sams, 
Goldsb.  81.     As  to  estates  in  fee 
simple    conditional    in    particular, 
Bract.  2976,  ad  fin.  says,  "Idem 
t-rit   de  terra  data   in   maritagio, 
licet  revertatur  pro  defecto  here- 
dis,   uxor   do  tern   obtinebit;"   and 
in  Paine's  Case,  as  reported  in  8 
Co.  34  a,  it  was  "resolved  by  the 
whole   Court   [of   Common   Pleas] 
that  at  the  common  law,  if  lands 
had  been  given  to  a  woman  and 
the  heirs  of  her  body,  and  she  had 


taken  a  husband  and  had  issue  and 
the  issue  died,  and  the  wife  also 
without    issue,    whereby    the    in- 
heritance of  the  land  did  revert  to 
the  donor,  in  that  case  the  estate 
of  the  wife  is  determined,  and  yet 
the  husband  shall  be  tenant  by  the 
curtesy,   for  that  is  tacite  implied 
in    the    gift."      See    Barksdale    v. 
Gamage,  3  Rich.  Eq.  271,  275.    In 
like   manner   when   land    escheats 
per  defectum  sanguinis,  the  widow 
of  the  tenant  has  dower.     Bract. 
297  6,  sub  fin.  Bro.  Ab.  Ten.  33. 
So  the  widow  of  the  Prince  of  Wales 
as  Duke  of  Cornwall.    The  Prince's 
Case,  8  Co.  14  a,  27  a.     When  a 
special  limitation  is  such  that  it 
may  determine  the  fee  in  the  life- 
time of  the  tenant,  e.  g.  till  the 
building  of  St.  Paul's  shall  be  fin- 
ished,  it  has  been  said  that  the 
dower  will  be  cut  off.     Jenk.   5. 
Per  Vaughan,  C.  J.,  in  Anon.,  Carter, 
208,  210,  sub  fin.     Cf.  Chaplin  t». 
Chaplin,  3  P.  Wins.  229.    In  reach- 
ing the  conclusion  that  dower  con- 
tinued after  the  determination  of 
a   fee   simple   conditional,    no   re- 
liance has  been  placed  upon  the 
decision  in  Buckworth  v.  Thirkell, 
3  B.  &  P.  652,  note,  that  an  execu- 
tory devise  does  not  cut  off  curtesy. 
That  case  has  been  often  followed 
as  to  dower  also,  but  it  has  been 
generally    recognized     that     Lord 
Mansfield's  ruling  in  that  case  was 
due  to  his  not  regarding  the  dis- 
tinction between  a  fee  with  a  special 
limitation  and  a  fee  subject  to  a 
shifting   use   or   executory   devise. 
See  Park,  Dower,  49,  50,  153-190; 
Scribner,  Dower  (2d  ed.),  cc.  13,  14, 


FUTURE   INTERESTS. 


9 


this  provision  was  expressed;  but,  even  though  not  expressed, 
yet  on  a  gift  in  frankmarriage,  or  simply  to  A.  and  the  heirs 
of  his  body,  it  was  tacitly  implied.1  If  the  donee  of  such 
an  estate  had  issue  born,  then  he  could  alienate  the  land* 
so  as  to  pass  a  fee  simple.  •  If  he  never  had  issue  born,  or  if 
he  alienated  before  issue  born,3  or  if  his  issue,  though  born, 
had  all  died  before  there  had  been  any  alienation  of  the  estate, 
then,  on  his  death,  or  the  subsequent  failure  of  his  issue,  the 
land  reverted  to  the  donor  and  his  heirs.4  This  possibility 
of  reverter  was  inalienable;5  but  it  could  be  released  to  the 
tenant  of  the  fee  simple  conditional.6  There  could  be  no 
remainder  after  a  fee  simple  conditional.7 


1  St.  De  Donig,  13  Edw.  I.  c.  1, 
§1.  Bract.  17  b.  See  Glenn  v. 
Glenn,  21  So.  Car.  308. 

1  It  is  held  in  South  Carolina, 
where  estates  in  fee  simple  con- 
ditional still  exist,  that  they  are 
never  devisable.  Jones  v.  Postell, 
Harp.  92. 

1  Co.  Lit.  19  a.  See  Anon.,  Fitz. 
Ab.  Formedon,  65;  Willion  v.  Berk- 
ley, 1  Plowd.  223,  235,  245;  Barks- 
dale  v.  Gamage,  3  Rich.  Eq.  271, 
279.  But  in  Powers  v.  Bullwinkle, 
33  So.  Car.  293,  302,  303,  on  a 
mistaken  statement  of  what  had 
been  decided  in  Barksdale  v.  Ga- 
mage, it  was  held  that  though  the 
alienation  was  before  issue  born, 
yet  if  issue  were  born  afterward, 
the  possibility  of  reverter  was 
barred;  and  Powers  v.  Bullwinkle 
was  followed  in  Dillard  v.  Yarboro, 
77  So.  Car.  227. 

4  Anon.,  Fitz.  Ab.  Formedon, 
65.  Co.  Lit.  19  a.  See  Willion  v. 
Berkley,  1  Plowd.  223,  235;  Barks- 
dale  v.  Gamage,  3  Rich.  Eq.  271, 
279,  280;  Powers  v.  Bullwinkle,  33 
So.  Car.  293,  302,  303. 

1  It    cannot    be   devised.     See 


Bedon  v.  Bedon,  2  Bail.  231,  248; 
Adams  v.  Chaplin,  1  Hill,  Ch.  265, 
280;  Deas  v.  Horry,  2  Hill,  Ch.  244; 
but  cf.  Cruger  v.  Heyward,  2  Des. 
94;  note  to  Mazyck  v.  Vanderhorst, 
Bail.  Eq.  48,  56;  Powers  v.  Bull- 
winkle,  33  So.  Car.  293,  302.  The 
possibility  of  reverter  after  a  fee 
simple  conditional  in  copyhold 
lands  (see  §  70,  post)  is  devisable 
under  the  Wills  Act  (1  Viet.  c.  26), 
§  3,  which  also  makes  a  right  of 
entry  for  condition  broken  devis- 
able. Pemberton  v.  Barnes,  [18991 

1  Ch.  544.     The  fee  simple  condi- 
tional does  not  merge  in  the  possi- 
bility of  reverter.    Adams  v.  Chap- 
lin, 1  Hill,  Ch.  265.    The  contrary 
has  been  held  in  the  case  of  copy- 
holds.   Doe  d.  Simpson  v.  Simpson, 
4  Bing.  N.  C.  333;  5  Scott,  770; 
Doe  d.  Blesard  v.  Simpson  (in  Cam. 
Scacc.)   3   Man.   &   G.   929.     See 
Bishop  of  Sodor  and  Man  v.  Derby, 

2  Ves.  Sen.  337,  355. 

•  Pearse  v.  Killian,  McMull.  Eq. 
231.  See  Adams  v,  Chaplin,  1  Hill, 
Ch.  265,  278. 

7  Willion  v.  Berkley,  1  Plowd. 
223,  235,  242.  Co.  Lit.  18  a.  2 


10 


THE  RULE  AGAINST  PERPETUITIES. 


§  15.    (4)   Curtesy    and    Dower.  —  Curtesy    is    the    estate 
for  life  which  a  man  has  in  an  estate  of  inheritance  of  his 


Inst.  336.  Mazyck  v.  Vanderhoret, 
Batf.  Eq.  48.  Bedon  v.  Bedon,  2 
Bail.  231,  248.  Bailey  t;.  Seabrook, 
Rich.  Ch.  Gas.  419,  426  et  seq. 
Adams  v.  Chaplin,  1  Hill,  Ch.  265. 
Edwards  v.  Barksdale,  2  Hill,  Ch. 
184,  197.  Deas  v.  Horry,  Ib.  244. 
Williams  v.  Caston,  1  Strob.  130, 
133.  Buist  v.  Dawes,  4  Strob.  Eq. 
37,  48.  The  case  of  Cruger  v.  Hey- 
ward,  2  Des.  94,  if  it  decides  the 
contrary,  must  be  considered  over- 
ruled, see  note  to  Mazyck  t;.  Van- 
derhorst,  Bail.  Eq.  48,  58. 

In  modern  times  the  belief  and 
practice  have  been  in  accordance 
with  the  text.  But  Sir  Frederick 
Pollock  and  Professor  Maitland 
have  shown  good  reason  to  doubt 
whether  this  was  so  originally.  2 
P.  &  M.  Hist.  Eng.  Law  (2d  ed.) 
23-25,  28;  and  see  an  article  by 
Professor  Maitland,  6  Law  Quart. 
Rev.  22;  criticised,  Challis,  Real 
Prop.  (3d  ed.)  85,  428.  Cf.  also  2 
Bract.  Note  Book,  77,  347  (to  which 
the  author's  attention  was  drawn 
by  his  learned  friend  and  colleague, 
Professor  Joseph  Warren);  Bract. 
18  6;  Fleta,  Lib.  3,  c.  9,  §9;  Row- 
den  v.  Maltster,  Cro.  Car.  42,  43; 
Doe  d.  Simpson  v.  Simpson,  4  Bing. 
N.  C.  333,  345;  5  Scott,  770,  788; 
Gardner  v.  Sheldon,  Vaugh.  259, 
269;  2  Prest.  Est.  318,  319,  323- 
354;  note  to  Mazyck  v.  Vander- 
horst,  Bail.  Eq.  48,  53,  55,  56. 

At  the  present  day,  apart  from 
the  objection  of  remoteness,  there 
seems  no  reason  why  a  limitation 
in  a  will  after  a  fee  simple  condi- 
tional should  not  be  good  as  an  ex- 
ecutory devise.  Gardner  v .  Sheldon, 


Vaugh.  259,  270.  Cruger  v.  Key- 
ward,  2  Des.  94  (see  note  to  Mazyck 
v.  Vanderhoret,  Bail.  Eq.  48,  58). 
Rowland  v.  Warren,  10  Oreg.  129. 
(But  cf.  Doe  d.  Simpson  v.  Simp- 
son, vbi  sup.)  And  several  cases  in 
which  an  executory  devise  after  a 
fee  simple  conditional  has  been  held 
to  be  too  remote  seem  to  imply,  by 
raising  and  deciding  the  question  of 
remoteness,  that  such  a  devise,  if 
not  too  remote,  would  be  good. 
Mazyck  v.  Vanderhoret,  Bail.  Eq. 
48.  Bedon  v.  Bedon,  2  Bail.  231, 
248.  Adams  v.  Chaplin,  1  Hill,  Ch. 
265,  280.  See  Barksdale  v.  Gamage, 
3  Rich.  Eq.  271,  276.  The  South 
Carolina  cases  in  which  it  had  been 
decided  or  said  that  there  could  be 
no  executory  devise  after  a  fee 
simple  conditional,  Bailey  v.  Sea- 
brook,  Rich.  Ch.  Cas.  419;  Williams 
v.  Caston,  1  Strob.  130,  133;  Buist 
v.  Dawes,  4  Strob.  Eq.  37,  48  et 
seq.',  Barksdale  v.  Gamage,  3  Rich. 
Eq.  271,  274,  seemed  to  rest  on  no 
valid  reason,  as  was  strongly  inti- 
mated in  the  carefully  considered 
opinion  of  Dorgan,  C.,  in  Buist  v. 
Dawes,  4  Strob.  Eq.  37,  48.  The 
only  reason  given  was  in  Bailey  t>. 
Seabrook,  Rich.  Ch.  Cas.  419,  viz., 
the  rule  that  a  limitation  must 
always  be  construed,  if  it  can  be, 
as  a  remainder  instead  of  as  an 
executory  devise;  but  as  this  limi- 
tation confessedly  cannot  be  con- 
strued as  a  remainder,  the  rule 
seems  rather  a  reason  for  constru- 
ing it  as  an  executory  devise. 
In  Edwards  v.  Barksdale,  2  Hill, 
Ch.  184,  197,  198,  it  was  said  by 
O'Neall,  J.,  that  if  an  estate  which 


FUTURE   INTERESTS.  11 

wife  after  issue  born  between  them  who  could  inherit  the  estate. 
It  has  been  questioned  whether  the  estate  vests  in  possession 
on  the  birth  of  the  issue,  or  on  the  death  of  the  wife.1  Dower 
is  the  estate  for  life  which  a  widow  has  in  such  land  of  which 
her  husband  was  seised  during  the  coverture  as  her  issue,  should 
there  be  any,  could  inherit.  Anciently  the  more  common  form 
of  dower  seems  to  have  been  dower  ad  ostium  ecclesice  (of  which 
dower  ex  permissu  patris  was  a  variety).  By  this  a  woman  was 
endowed  at  the  time  of  marriage  with  certain  lands  into  which 
she  could  enter  immediately  upon  her  husband's  death.  This 
kind  of  dower  has  become  entirely  obsolete.  The  right  of 
dower  at  common  law  is  the  right  of  a  woman  to  have  assigned 
to  her  by  the  heir  one-third  of  the  land  in  which  she  is  dowable. 
§  16.  (5)  Interests  less  than  Ownership  in  Land  of  others.  — 
Interests  in  land  owned  by  others,  such  as  commons  and  other 
profits,  ways  and  other  easements,  rents,  etc.,  cannot,  from 
their  nature,  be  created  by  livery  of  seisin.  They,  therefore, 
lie  in  grant,  that  is,  are  created  by  deed,  and  consequently 
can  begin  in  futuro.2 

would  otherwise  be  deemed  a  fee  In  Fletcher  v.  Fletcher,  88  Ind. 

simple  conditional  is  followed  by  418,  a  deed  of  land  to  A.  for  life, 

an  executory  devise  not  too  remote,  and  after  his  death  to  his  children 

the  first  estate  must  be  construed  to  in  fee  simple,  was  held  to  give  A. 

be  an  estate  in  fee  simple.    And  it  an  estate  in  fee  simple  conditional, 

has  now  been  held  in  South  Caro-  which  on  the  birth  of  children  be- 

lina  that  there  may  be  an  execu-  came  absolute.     It  is  unnecessary 

tory  devise  limited  on  a  fee  simple  to  point  out  to  the  learned  reader 

conditional.    Powers  v.  Bullwinkle,  the  errors  in  this  opinion. 

33  So.  Car.  293.    Selman  v.  Robert-  1  The  former  view  was  adopted 

son,  46  So.  Car.  262.    See  Buist  v.  in  Foster  v.  Marshall,  22  N.  H.  491; 

Dawes,  before  the  Court  of  Errors,  the  latter  in  Jones  v.  Davies,  5  H. 

4  Rich.  Eq.  421,  496;  McCorkle  v.  &  N.  766;  7  H.  &  N.  507.    See  1 

Black,  7  Rich.  Eq.  407,  410,  419;  Tiffany,    Real    Prop.,    §210.     Cf. 

Bethea  v.  Bethea,  48  So.  Car.  440;  Doyle  v.  Amer.  Fire  Ins.  Co.,  181 

Barber  v.  Crawford,  85  So.  Car.  54.  Mass.  139. 

Cf.  also  Whitworth  v.  Stuckey,  1  *  By  the  common  law,  all  in- 
Rich.  Eq.  404;  M'Lure  v.  Young,  terests  in  real  estate  that  can  be 
3  Rich.  Eq.  559;  Graham  v.  Moore,  created  by  livery  have  to  be  BO 
13  So.  Car.  115;  Mangum  v.  Piester,  created,  and  are  called  corporeal 
16  So.  Car.  316.  hereditaments;  interests  that  from 


12  THE  BULB  AGAINST  PERPETUITIES. 

§  17.  Though  interests  in  others'  lands  could  at  common  law 
be  created  to  begin  in  futuro,  yet  such  interests  when  once  exist- 
ing could  not  be  granted  in  futuro;  and  the  same  was  true 
of  existing  reversions  and  remainders.  Thus  a  rent  might  be 
granted  to  A.  and  his  heirs,  to  begin  ten  years  from  date,  and  A. 
could  transfer  by  grant  the  rent  to  B.;  but  A.  could  not  grant 
the  rent  to  B.  to  have  it  from  and  after  A.'s  death.  So,  again, 
if  land  had  been  conveyed  to  G.  for  life,  remainder  to  H.  and 
his  heirs,  H.  could  grant  his  remainder  to  I.,  but  he  could  not 
grant  to  I.  the  remainder  from  and  after  H.'s  death.1  The 
reason  given  is  that  "if  a  reversion  might  be  granted  at  a  day 
to  come,  from  thence  it  would  follow  that  the  grantor  would 
have  a  particular  estate  in  it,  in  the  meantime,  of  his  own 
creation,  which  cannot  be  by  the  rule  of  law  that  a  man  should 
be  lessor  to  himself." 2 

§  17  a.  Escheat.  —  When  tenant  in  fee  simple  dies  without 
heirs  (which  may  happen  either  per  defectum  sanguinis  or  per 
delictum  tenentis)  the  land  falls  by  escheat  to  the  lord  of  whom 
it  is  held.3 

their  nature  do  not  admit  of  livery  38  Hen.  VI.   38;   Vavasour,  J.,  8 

can   be   created   or   conveyed   by  Hen.    VII.    3  b;   Throckmerton   v. 

deed,  and    are    called    incorporeal  Tracy,  1  Plowd.  145,  152,  155,  156; 

hereditaments.     This  genus  of  in-  Wrotesley  v.  Adams,  Id.  187,  197; 

corporeal    hereditaments    contains  Plowd.  Qu.  §  302;  1  Roll.  Ab.  829, 

two   species:    (1)    Existing   future  pi.  7.     Cf.  §  279,  post. 

estates,  i.  e.  remainders  and  rever-  2  1  Plowd.  155.    This  seems  the 

eions;  (2)  jura  in  alieno  solo,  i.  e.  real  reason  why  the  Rule  was  es- 

profits,  easements,  rents,  etc.    The  tablished,  and  not  that  given  in  1 

tie  uniting  these  two  very  unlike  Preston,    Est.    216-220.      Challis, 

classes  is  that  neither  of  them  lies  Real  Prop.  (3d  ed.)  104,  112. 

in  livery.     Cf.    Mr.   Sweet's   note  Under  the  Statutes  of  Uses  and 

on  Corporeal  and  Incorporeal  Here-  Wills  existing  incorporeal  heredita- 

ditaments   in  Challis,   Real   Prop.  ments  can  now  be  transferred  in 

(3d  ed.)  48.  futuro;  for  a  shifting  use  or  execu- 

1  Buckler    v.   Harvy,    Cro.   El.  tory  devise  does  not  create  a  par- 

450,  585;  Moore,  423;  2  Co.  55  a.  ticular  estate  in  the  settlor  or  in 

See  Swift  v.  Heirs,  March,  31;  sub  the  testator's  heirs,  but  the  settlor 

norm.  Vicars  Choral  de  Litchfield  v.  or  heirs   retain   the   fee  until  the 

Ayres,   W.   Jones,    435;    sub  nom.  future  event  happens,  upon  which 

Swyft  v.  Eyres,   Cro.  Car.  546;  1  the  fee  shifts.     §  54,  post. 

Roll.  Ab.  828,  pi.  3.    Prisot,  C.  J.,  «  See  §§  115  o,  205,  note,  post. 


FUTURE   INTERESTS.  13 

2.  Statute  De  Dora's. 

§  18.  In  1285,  by  St.  Westm.  II.,  13  Edw.  I.  c.  1,  De  Doras 
Conditionalibus,  estates  in  fee  simple  conditional  were  turned 
into  estates  tail,  the  donor's  possibility  of  reverter  became  a 
reversion,  and  a  remainder  could  be  created  after  a  fee  tail 
as  after  a  life  estate.  Interests  were  thus  secured  to  future 
generations  of  a  family,  and,  failing  these,  to  the  remainder- 
man or  donor,  which  could  not  be  destroyed  by  the  tenant  for 
the  time  being  of  the  estate. 

§  19.  By  the  gradual  operation  of  (1)  the  doctrine  of  Col- 
lateral Warranty;  (2)  the  allowance,  by  the  courts,  of  Com- 
mon Recoveries  as  a  means  of  barring  estates  tail; *  and  (3)  the 
Statutes  of  Fines,  4  Hen.  VII.  c.  24,  and  32  Hen.  VIII.  c.  36, 
estates  tail  became  alienable,  and  the  reversions  and  remain- 
ders after  them  destructible.2  The  alienation  of  estates  tail 
is  at  present  regulated  in  England  by  St.  3  &  4  Wm.  IV.  c.  74, 
by  which  fines  and  recoveries  were  abolished  and  simpler 
modes  of  assurance  substituted.  Wherever  in  any  of  the 
United  States  estates  tail  have  been  preserved,  simpler  forms 
of  conveyance  have  also  generally  taken  the  place  of  fines  and 
recoveries.3 

1  Taltarum's    Case    (1472),    12  mentioned  should  be  in  force;  and, 
Edw.  IV.  19.  §   10,  that    all    others  should  be 

2  Digby,  Hist.  Law  Real  Prop.  declared  impracticable.     This  Act 
c.  5,   §  2.     2  Bl.  Com.  348-364.  does  not  mention  the  Statute  De 
Wms.  Real  Prop.  (22d  ed.),  Part  I,  Donis;  and   the  Statute   is  there- 
c.  3.  fore  not  in  force  in  that  State.    See 

1  See,  for  example,  Me.  Rev.  §  14,  ante.  Mr.  Dane,  6  Dane, 

Sts.  (1903),  c.  75,  §  7;  2  Mass.  Rev.  Ab.  606,  says  that;  this  Act  applied 

Laws,  c.  127,  §§  24-27;  R.  I.  Gen.  also  to  North  Carolina,  Tennessee, 

Laws  (1909),  c.  252,  §§5,  14-17;  Georgia,  Alabama,  and  Mississippi; 

Del.  Rev.  Sts.  (1893),  c.  83,  §  27;  but  either  it  did  not  apply  to  them, 

1  Md.  Pub.  Gen.  Laws  (1904),  Art.  or  the  enumeration  of  Statutes  in 

21,  §  24.  the  Act  did  not  include  all  those  in 

The  Statute  De  Donis  was  force,  for  in  all  the  above  States 

brought  by  the  colonists  to  America.  the  Statute  De  Donis.  seems  to 

On  Dec.  12,  1712,  South  Carolina  have  been  in  force  until  repealed 

passed  an  Act  declaring  that  cer-  by  later  legislation.  N.  C.  St. 

tain  British  Statutes  particularly  1749,  c.  46;  St.  1784,  c.  204,  §  5. 


14 


THE   RULE  AGAINST  PERPETUITIES. 


3.   Statute  Quia  Emptores. 

§  20.   At  common  law  a  tenant  in  fee  could  either,  (1)  with 
the  consent  of  the  lord,  substitute  another  in  his  own  place 


Patterson  v.  Patterson,  1  Hayw. 
163.  Den  d.  Lane  v.  Davis,  Id. 
277.  Minge  v.  Gilmour,  Id.  279. 
Moore  v.  Bradley,  2  Hayw.  142. 
Polk  v.  Paris,  9  Yerg.  209,  234.  Ga. 
Const.  (1777),  Art.  51.  Ga.  Const. 
(1789),  Art.  4,  §  6.  Ga.  St.  Feb. 
16,  1799,  §  5;  St.  Dec.  21,  1821. 
Gray  v.  Gray,  20  Ga.  804.  Hertz 
v.  Abrahams,  110  Ga.  707.  Davis 
v.  Hollingsworth,  113  Ga.  210.  Ala. 
St.  Dec.  22,  1812,  §  10.  Simmons 
v.  Augustin,  3  Port.  69.  Miss.  St. 
Dec.  22,  1812,  §  10;  St.  June  13, 
1822,  §  24.  Jordan  v.  Roach,  32 
Miss.  481,  616. 

Estates  tail  can  still  be  created 
in  Maine,  Massachusetts,  Rhode 
Island,  Delaware,  and  Maryland. 
In  Pennsylvania  they  can  no  longer 
be  created,  but  those  existing  at 
the  time  of  the  passage  of  the  St. 
of  April  27,  1855,  are  not  disturbed. 
Reinhart  t;.  Lantz,  37  Pa.  488. 

In  Connecticut,  an  estate  to  one 
and  the  heirs  of  his  body  was  held 
to  give  neither  a  fee  simple  condi- 
tional nor  an  estate  tail;  but  to  give 
"an  absolute  estate  in  fee  simple 
to  the  issue  of  the  first  donee  in 
tail."  The  Statute  of  1784  (Conn. 
Gen.  Sts.  1902,  §  4027),  to  this 
effect,  is  said  to  have  been  declara- 
tory of  the  common  law  of  the 
Colony.  Welles  v.  Olcott,  Kirby, 
118.  Chappel  v.  Brewster,  Id.  175. 
Hamilton  v.  Hempsted,  3  Day,  332. 
See  Ohio  Rev.  Sts.  (1880),  §  4200. 

The  Supreme  Court  of  Oregon 
has  held  that  the  Statute  De  Donis 
is  not  in  force  in  that  State;  they 


leave  undetermined  the  question 
whether  a  gift  to  A.  and  the  heirs 
of  his  body  gives  him  a  fee  simple 
conditional.  Rowland  v.  Warren, 
10  Oreg.  129.  The  same  thing  oc- 
curred in  Pierson  v .  Lane,  60  Iowa, 
60;  but  in  Kepler  v.  Larson,  131 
Iowa,  438,  the  Supreme  Court  of 
Iowa  said  that  the  old  conditional 
fees  still  existed  in  that  State,  and 
it  was  so  held  in  Sagers  v.  Sagers, 
138  N.  W.  Rep.  (Iowa)  911. 

In  most  of  the  United  States  es- 
tates tail  have,  at  the  present  day, 
been  abolished  by  Statute  expressly 
or  impliedly.  Mr.  Stimson,  in  his 
valuable  book  on  American  Statute 
Law,  says  (§  1313)  that  "in  twelve 
States  and  Territories  the  laws  are 
silent,  and  estates  tail  would  logi- 
cally seem  to  be  preserved  as  at 
common  law  (the  learned  author 
means  under  the  Statute  De  Donis), 
New  Hampshire,  Iowa,  Kansas, 
Nebraska,  Texas,  Oregon,  Nevada, 
Washington,  Idaho,  Montana,  Wy- 
oming, South  Carolina."  But,  as 
shown  above,  estates  tail  do  not 
exist  in  Iowa,  Oregon,  or  South 
Carolina,  and  in  New  Hampshire 
it  is  held  that  they  have  been  done 
away  with  by  implication  from  the 
Statutes.  Merrill  v.  Amer.  Bap- 
tist Missionary  Union,  73  N.  H. 
414.  As  to  the  other  States  Mr. 
Stimson's  remark  is  just,  that  in 
many  of  them  estates  tail  would 
presumably  not  be  recognized  by 
the  courts.  Words  which  under 
the  Statute  De  Donis  would  create 
an  estate  tail  give,  by  statute,  in 


FUTURE  INTERESTS.  15 

to  hold  the  fee  of  the  lord;1  or  (2)  by  subinfeudation,  grant 
the  land  to  be  held  of  himself.  But  the  former  mode  could  be 
employed  only  when  the  feoffee  was  to  hold  the  same  fee 
that  the  feoff  or  had  held;  and,  therefore,  when  the  feoffor 
conveyed  a  part  only  of  his  land  the  feoffee  had  to  hold  of 
him;  and  so,  when  the  feoffor  conveyed  a  life  estate,  or  a  fee 
with  a  special  limitation  (e.  g.  to  A.  and  his  heirs,  tenants  of 
the  Manor  of  Dale),  or  (after  the  Statute  De  Dora's)  an  estate 
tail,  the  feoffee  held  directly  of  him.2  All  reversions  and 
possibilities  of  reverter  were  therefore  always  in  the  hands  of 
the  persons  of  whom  land  was  held;  for  though  a  reversion 
could  be  alienated,  it  carried  with  it  the  lordship  of  the  partic- 
ular estate;  and  a  possibility  of  reverter  could  not  be  alienated.3 

§  21.  The  St.  Westm.  III.  18  Edw.  I.  c.  1  (1289),  known 
as  the  Statute  Quia  Emptores  Terrarum,  enacts  that  on  all 
conveyances  in  fee  the  tenant  shall  not  hold  of  the  grantor, 
but  of  the  grantor's  lord.  This  put  an  end  to  subinfeudation. 
The  Statute  does  not  affect  gifts  in  tail  or  for  life.4  And,  as 
lands  in  frankalmoign  could  not  be  held  of  anyone  but  the 
grantor,5  land  could  not  be  granted  in  frankalmoign  after 
the  Statute,  except  by  the  King.6  We  have  here  to  consider  the 
effects  of  the  Statute  on  the  future  interests  allowed  by  the 
common  law.7 

§  22.  Before  dealing  with  this,  however,  it  will  be  con- 
venient to  see  how  far  the  Statute  Quia  Emptores  is  in  force 
in  the  United  States;  and  a  question  preliminary  to  this 

some  States,  an  estate  in  fee  simple;  *  Bract.  81.     2  Inst.  65. 

in  others  an  estate  for  life  in  the  2  2  Inst.  65;  Digby,  Hist.  Law 

first  donee,  with  remainder  in  fee  Real  Prop.  c.  4,  §  5.     1  P.  &  M. 

to  his  children  or  his  heirs.     See  Hist.  Eng.  Law  (2d  ed.)  329-331. 

Stimson,  ubi  sup.;  17  Harv.  Law  *  See  §§  13,  14,  ante. 

Rev.  305-316;  13  Yale  Law  J.  267.  4  See  §  3  of  the  Statute  ad  fin. ; 

On  the  effect  of  the  Illinois  Statute  22  Edw.  I.  p.  641;  2  Inst.  504,  505; 

see  Kales,  Fut.  Int.  in  111.,  §§  270-  Digby,  Hist.  Law  Real  Prop.  c.  4, 

273;  1  111.  Law  Rev.  323.    In  Hawaii  §  5,  note. 

there  is  neither  fee  tail  nor  fee  sim-  8  Lit.  §  141.     Perk.  §  260. 

pie  conditional.     Rooke  v.  Queen's  8  Lit.  §  140. 

Hospital,  12  Hawaii,  375.  7  See  §  7,  ante. 


16  THE  RULE  AGAINST  PERPETUITIES. 

inquiry  is:  How  far  does  tenure  exist  in  the  United  States? 
For  it  is  idle  to  inquire  whether  a  Statute  directing  of  whom 
land  shall  be  held  is  in  force,  if  land  cannot  be  held  at  all. 
This  preliminary  question  has  been  much  discussed.  Land 
was  held  of  the  Crown  in  the  Colonial  times,  and  it  does  not 
seem  that  so  fundamental  an  alteration  in  the  theory  of  prop- 
erty as  the  abolition  of  tenure  would  be  worked  by  a  change 
of  political  sovereignty.  Tenure  still  obtains  between  a  tenant 
for  life  or  years  and  the  reversioner;  and  so  in  like  manner,  it 
is  conceived,  a  tenant  in  fee  simple  holds  of  the  chief  lord, 
that  is,  of  the  State.1 

§  23.  The  subject  has,  however,  in  many  States  been  affected 
by  legislation  or  decision. 

Connecticut.  —  "Every  proprietor  in  fee  simple  of  lands  has 
an  absolute  and  direct  dominion  and  property  in  the  same. "  2 

New  York.  —  "All  lands  within  this  State  are  declared  to  be 
allodial,  so  that,  subject  to  the  liability  to  escheat,  the  entire 
and  absolute  property  is  vested  in  the  owners,  according  to  the 
nature  of  their  respective  estates;  and  all  feudal  tenures,  of 
every  description,  with  all  their  incidents,  are  abolished." 3 

New  Jersey.  —  The  St.  of  Feb.  18,  1795,4  declares  that  the 
purchaser  of  lands  shall  hold  them  of  the  chief  lord,  if  there 
be  any,  of  the  fee;  that  all  tenures  are  turned  into  free  and 
common  socage;  but  that  this  shall  not  take  away  "any  rents 
certain,  or  other  services  incident  or  belonging  to  tenure  in 
common  socage,  due  or  to  grow  due  to  this  State,  or  any  mean 
lord,  or  other  private  person,  or  the  fealty  and  distresses 
incident  thereunto; "  and  that  the  tenure  of  all  grants  made 

1  Sharewood,    Law   Lect.  VIII.  tit.  56,  c.  1,  §  1,  note;  Gen.  Sts. 

207-232.      Hoff.    Leg.    Out.    593.  (1902),  §  4025. 
United    States    v.    Repentigny,    5  »  Rev.  Sts.  pt.  2,  c.  1,  tit.  1,  §  3. 

Wall.  211,  267.     Cf.  2  Bl.  Com.  This  Statute  had  been  preceded  by 

(Sharswood's  ed.)   77,   note.     But  St.  Feb.  20,  1787,  which  was  iden- 

eee   1  Washb.   Real   Prop.   39-42;  tical  with  the  New  Jersey  Statute, 

2    Bl.    Com.    (Cooley's    ed.)    102,  infra.      See    Cornell    v.    Lamb,    2 

note.  Cowen,  652;  Hoff.  Leg.  Out.  595. 

1  St.  Oct.  1793.    See  St.   1821,  «  1  Gen.  Sts.   (1895),   pp.  879, 

880. 


FUTURE   INTERESTS.  17 

or  to  be  made  by  the  State  shall  be  "allodial  and  not  feudal," 
and  "in  free  and  pure  allodium  only."  *  The  statement  in 
1  Washb.  Real  Prop.  *  40,  that  tenure  does  not  exist  in  New 
Jersey,  is  incorrect. 

Pennsylvania.  —  In  Wallace  v.  Harmstad  *  it  was  held  that 
tenure  does  not  exist  in  Pennsylvania.  This  will  be  con- 
sidered below  in  connection  with  the  Statute  Quia  Emptores? 

Maryland.  —  In  Matthews  v.  Ward 4  it  is  said  that  after  the 
Revolution  "lands  became  allodial,  subject  to  no  tenure." 5 

Virginia.  —  Tenures  were  abolished  by  St.  1779,  c.  13.6 

Ohio,  Indiana,  Illinois,  Michigan,  and  Wisconsin  were  formed 
out  of  the  Northwest  Territory,  which  was  ceded  by  Virginia 
to  the  United  States  in  1784,  subsequent  to  the  abolition 
of  tenure.  In  these  States,  therefore,  there  would  seem  to 
have  been  originally  no  tenure.7  The  government  of  the 
Northwest  Territory,  July  14,  1795,  passed  an  Act  declar- 
ing that  the  common  law  of  England  and  all  Acts  of  Parlia* 
ment  of  a  general  nature  made  in  aid  of  the  common  law  prior 

1  "Allodial"  land  is  now  usually  sub  fin.    Cf.  Ducange,  Glos.  voc.  cit. 

employed  to  mean  land  held  of  no  passim;  Co.  Lit.  1  6,  5  a,  65  a,  Harg. 

one.    2  Bl.  Com.  45,  note,  47,  105.  note;   Allen,   Prerog.    196;   Digby, 

See    Wright,    Tenures,    146,    147;  Hist.  Law  Real  Prop.  c.  1,  sect.  I. 

Gilbert,    Tenures    (4th    ed.)    352,  §§1,4.  In  the  New  York  Statute  of 

Watkins's  note  5;  Somner,  Gavel-  1787,  and  the  New  Jersey  Statute, 

kind,   109-111,   126.     This   is    the  the  word  seems  to  be  employed  in 

sense  in  which  it  is  employed  in  this  latter  sense.    See  sub  Georgia, 

the  New  York  Revised  Statutes,  post.     But  cf.  3  Kent,  Com.  513, 

ubi  sup.     Used  with  this  meaning  note  (a). 

the  expression  "allodial  tenure"  is  2  44  Pa.  492. 

nonsense.      But    "allodial    land"  *  See  §  26,  post. 

was  also  employed  to  mean  land  *  10  G.  &  J.  443,  451. 

which,  though  held  of  a  lord,  was  *  See  Hoff.  Leg.  Out.  594. 

not  subject  to  any  services.    "Erat  •  10  Hen.  St.  50,  64,  65.    See  2 

alodium    praedium    non    modo    ab  Minor,  Inst.  (4th  ed.)  79;  1  Lomax, 

omni   praestatione   liberum,   sed   a  Dig.  539. 

quolibet  servitio  reali  et  personali  7  See  Penny  t;.  Little,  4  111.  301, 

immune,  licet  illius  possessor  domi-  304,  305;  Lavalle  v.  Strobel,  89  111. 

num  agnosceret,  a  quo  illud  tenebat  370,  380.     Cf .    McCool  v.  Smith, 

in  feudum  honoratum."    Ducange,  1  Black,  459,  468;  Bates  v.  Browa 

Glos.  Alodis.  Spelm.  Glos.  Aloarius,  5  Wall.  710,  714. 


18  THE  BULB  AGAINST  PERPETUITIES. 

to  4  Jac.  I.  (which  was  the  date  of  the  settlement  of  Virginia), 
"and  also  the  several  laws  in  force  in  this  Territory,"  should 
be  in  full  force.1  It  is  doubtful  how  far  this  republication  of 
the  common  law  and  re-enactment  of  the  English  Statutes  were 
within  the  power  of  the  Territorial  Government.2  If  the  Act 
was  valid,  then  tenure,  and  at  the  same  time  the  Statute 
Quia  Emptores,  were  re-established  in  the  Northwest  Territory. 
After  Ohio  was  set  off  as  a  State,  its  Legislature,  Feb.  14, 
1805,3  passed  a  Statute  repealing  the  Act  of  the  Territorial 
Government,  and  then  re-enacting  it.  But  on  Jan.  2,  1806, 
the  Legislature  of  Ohio  passed  an  Act4  repealing  so  much  of 
the  last  Act  as  declared  that  the  common  law  of  England  and 
English  Statutes  should  be  in  force.  It  would  seem,  there- 
fore, that  the  law  in  Ohio  was  relegated  to  its  condition  before 
the  Territorial  Act  of  1795,  and  that  therefore  there  is  no 
tenure  in  that  State.5  On  Ohio  becoming  a  State  in  1802, 
all  the  rest  of  the  original  Northwest  Territory  was  included 
within  the  Territory  of  Indiana.  The  Legislature  of  this 
Territory  in  1807  enacted  that  the  common  law,  and  the 
British  Statutes  made  in  aid  thereof,  prior  to  4  Jac.  I.,  should 
be  considered  in  full  force,  and  this  provision  has  stood  on 
the  Statute  Book  of  the  Territory  and  of  the  State  of  Indiana 
ever  since.6  If,  therefore,  tenure  has  been  restored  in  Indiana, 
the  Statute  of  Quia  Emptores  has  been  restored  with  it.  In 
1809  the  Territory  of  Illinois  was  set  off  from  Indiana,  and  a 
Statute  similar  to  that  of  Indiana  has  always  continued  on 
the  Statute  Book  of  Illinois.7  The  Territory  of  Michigan 
was  set  off  from  the  Territory  of  Indiana  in  1805.  In  1821 

1  1  Chase,  St.  190,  191.  Am.  Law,  §  124.    Cf.  Crawford  v. 

*  1  Chase,  St.  190,  note.    Doe  d.  Chapman,  17  Ohio,  449. 
Thompson  v.  Gibson,  2  Ohio,  339.  •  1  Burns'  Ind.  Statutes  (1908), 
Helfenstine  v.  Garrard,  7  Ohio,  pt.  §  236.     Cf.  Stevenson  c.  Cloud,  5 
1,  275.    Carroll  v.  Olmsted,  16  Ohio,  Blackf.  92;  McCord  v.  Ochiltree,  8 
251,  260.     Knapp  v.  Thomas,  39  Blackf.  15,  19;  Short  v.  Stotts,  58 
Ohio  State,  377,  385.  Ind.  29;  Ledgerwood  v.  The  State, 

»  1  Chase,  St.  512.  134  Ind.  81,  84. 

4  1  Chase,  St.  528.  »  111.  Rev.  Sts.  c.  28,  §  1.    See 

•  11  Am.  Jur.  94,  95.     Walker,      the  cases  cited  in  note  6,  supra. 


FUTURE   INTERESTS.  19 

a  law  was  enacted  in  very  singular  language;  it  provided  "that 
no  Act  of  the  Parliament  of  England,  and  no  Act  of  the  Parlia- 
ment of  Great  Britain,  shall  have  any  force  within  the  Terri- 
tory of  Michigan:  Provided,  That  all  rights  arising  under  any 
such  Act  shall  remain  as  if  this  Act  had  not  been  made;  the 
same  being  adopted  from  the  laws  of  one  of  the  original  States, 
to  wit,  the  State  of  Virginia,  as  far  as  necessary  and  suitable 
to  the  circumstances  of  the  Territory  of  Michigan."  l  And  in 
the  same  year 2  it  was  also  enacted  that  estates  tail  shall  be 
abolished,  and  all  persons  then  seised  in  tail  should  be  deemed 
to  be  seised  of  an  allodial  estate.  Whatever  the  intention 
of  these  statutes  may  have  been,  it  seems  to  be  now  held  in 
Michigan,  that  if  the  Statute  of  Quia  Emptores  is  not  in  force 
there,  it  is  because  there  is  no  need  of  it,  and  that  subinfeuda- 
tion  would  not  be  allowed  in  that  State.3  It  is  unnecessary  to 
enter  upon  the  earlier  history  of  Wisconsin  law  for  the  Consti- 
tution of  the  State  provides  that  land  shall  be  allodial.4 

West  Virginia.  —  This  State  was  not  set  off  from  Virginia 
till  1862,  and  carried  with  it  the  law  of  Virginia.  Tenure, 
therefore,  has  never  existed  in  this  State. 

Kentucky.  —  In  this  State  titles  are  now  declared  by  Statute 
to  be  allodial.5 

South  Carolina.  —  The  Statute  of  Dec.  12,  1712,6  §  5,  de- 
clared that  the  only  tenure  of  lands  in  South  Carolina  was 
that  of  free  and  common  socage.  The  statements,  therefore, 
in  1  Washb.  Real  Prop.  *  40,  and  Smith  on  Landl.  and  Ten. 
(Am.  ed.)  6,  note,  that  there  is  no  tenure  in  South  Carolina 
appear  to  be  incorrect. 

Georgia.  —  The  Code  of  1911,  §  3623,  reads  thus:  "Allodial 
tenure.  The  tenure  by  which  all  realty  is  held  in  this  State 
is  under  the  State  as  original  owner;  it  is  without  service  of 

1  1  Mich.  Terr.  Laws,  900.  6  Ky.   Gen.   Sis.   (1873),  c.  63, 

1  1  Mich.  Terr.  Laws,  815.  §  2. 

»  Mandlebaum  v.  McDonell,  29          •  Grimke^s  Laws,  99.    Rev.  Sta. 

Mich.  78,  95.  1893,  §  1872. 

4  Wis.  Const.  (1848),  Art.  1,  §  14. 
Barker  v.  Dayton,  28  Wis.  367,  384. 


20  THE  RULE  AGAINST  PERPETUITIES. 

any  kind,  and  limited  only  by  the  right  of  eminent  domain 
remaining  in  the  State."  This  is  a  legislative  declaration  that 
tenure  exists.1 

Minnesota.  —  The  Constitution  (1857) 2  declares  that  all  land 
shall  be  allodial. 

Iowa.  —  In  1834  Iowa  was  made  part  of  the  Territory  of 
Michigan;  in  1836  it  was  attached  to  the  Territory  of  Wis- 
consin; and  in  1838  it  was  made  a  separate  Territory.  It 
is  probable  that  should  any  case  arise  it  will  be  held  in  Iowa, 
as  hi  Michigan,  that  if  the  Statute  of  Quia  Emptores  is  not  in 
force  hi  that  State,  it  is  because  there  is  no  need  of  it.3 

Arkansas.  —  The  Constitution  (1874)  declares  that  all  lands 
are  "allodial"  and  prohibits  "feudal  tenures  of  every  descrip- 
tion with  all  their  incidents."  4 

It  is  not  improbable  that  the  courts  of  other  States  may 
follow  that  of  Maryland,  and  declare  tenure  abolished  without 
legislative  aid;  but  as  yet  the  Maryland  case  (except  in  Penn- 
sylvania) B  finds  no  support  elsewhere. 

§  24.  In  those  States  where  tenure  no  longer  obtains, 
there  can  be  no  question  whether  the  Statute  Quia  Emptores 
is  in  force;  its  subject-matter  has  ceased  to  exist.  In  this 
condition  are  at  least  Connecticut,  New  York,6  Maryland,7 

1  On  the  use  of  the  expression,  that   the   Statute   Quia   Emptores 
"allodial  tenure,"  see  §  23,  note  1,  was  not  in  force  in  New  York  even 
p.  17,  ante.  before  the  Revised  Statutes.    Jack- 

2  Art.  1,  §  15.    Cf.  Minneapolis  son  v.  Schutz,  18  Johns.  174,  179, 
MiU  Co.  v.  Tiffany,  22  Minn.  463;  180.    De  Peyster  v.  Michael,  6  N. 
Dutcher  v.  Culver,  24  Minn.  584,  Y.  467,  502,  503.     But  see  Denio, 
617.  J.,  in  People  v.  Van  Rensselaer,  9 

1  See  Pierson  v.  Lane,  60  Iowa,  N.  Y.  291,  338,  and  in  Van  Rens- 

60.      Cf.    O'Ferrall,  v.  Simplot,   4  selaer  v.  Hays,  19  N.  Y.  68,  71-75; 

Iowa,  381;  Lorman  v.  Benson,  8  1  Chalm.  Col.  Op.  129  (Am.  ed. 

Mich.  18,  25;  Coburn  v.  Harvey,  18  149);  and  25  Alb.  L.  J.  169. 
Wis.   147;  Webster  v.  Morris,   66  7  See    Chancellor    Kilty's  Eng- 

Wis.  366,  376,  note,  390;  Gilbert  v.  lish  Statutes  in  Maryland,  146;  and 

Stockman,  81  Wis.  602.  the    Charter   to    Lord    Baltimore, 

4  Art.  II.  §  28.  Lucas,    Chart.    95.     Cf.    Thomas 

•  As  to  Pennsylvania,  see  §  26,  v.  -Hamilton,    1   H.  &  McH.  190; 
post.  Matthews   v.  Ward,    10   G.   &  J. 

•  It  has   been    sometimes  said  443,  450. 


FUTURE  INTERESTS.  21 

Virginia,1  Ohio,  Wisconsin,  West  Virginia,  Kentucky,  Minne- 
sota, Arkansas.2 

§  25.  In  the  States  where  there  is  no  reason  to  question  the 
existence  of  tenure,  there  seems  as  little  reason  to  question 
the  existence  of  the  Statute  Quia  Emptores.  There  is  no  cause 
why  this  Statute  should  not  have  prevailed  as  generally  as  the 
Statute  De  Dora's.  Denio,  J.,  in  Van  Rensselaer  v.  Hays,3 
points  out  the  absurdity  of  supposing  that  subinfeudation 
existed  in  the  Colonies  generally.  In  New  Jersey  the  Stat- 
ute was  in  force,  and  has  been  expressly  re-enacted;4  Mr. 
Dane  says 5  that  the  Statute  of  Quia  Emptores  was  "never 
adopted  here"  (gu.  in  Massachusetts).  But  no  authority  is 
cited  for  the  proposition.  The  alleged  non-existence  of  the 
Statute  in  North  Carolina,  Tennessee,  Georgia,  Alabama,  and 
Mississippi  rests  upon  the  same  ground  as  the  alleged  non- 
existence  in  those  States  of  the  Statute  De  Dora's,  which,  as 
we  have  seen,6  wholly  fails.7  In  Indiana,  Illinois,  Michigan, 
and  Iowa,  either  there  is  no  tenure,  or,  if  tenure  exists,  the 
Statute  Quia  Emptores  exists  also.8  There  would  seem  to  be, 
of  the  States  in  which  tenure  exists  at  the  present  day,  but 
two  in  which  the  Statute  Quia  Emptores  is  not  in  force,  — 
Pennsylvania  and  South  Carolina. 

§  26.  Pennsylvania.  —  By  the  Charter  of  1681  the  Crown 
granted  to  William  Perm  the  power  to  grant  land  to  be  held 
of  himself,  his  heirs  and  assigns,  and  not  immediately  of  the 
Crown,  the  Statute  Quia  Emptores  notwithstanding.9  And  in 
Ingersoll  v.  Sergeant10  (1836),  a  very  elaborately  argued  and 

1  The    Statute    Quia   Emptores  New  York  and  Virginia  before  the 

was  in  force  in  Virginia,  1  Chalm.  abolition  of  tenure,   see  notes  to 

Col.  Op.  121  (Am.   ed.   142);  but  §24. 
was  repealed  by  St.  1792,  c.  147,  5  4  Dane,  Ab.  504. 

after  tenures  had  been   abolished,  8  §  19,  note  3,  ante. 

1  Lomax,  Dig.  539.  7  And     see     Martin's     English 

z  See  Mandlebaum  v.  McDonell,  Statutes  in  North  Carolina  (1792), 

29  Mich.  78,  95.  39. 

»  19  N.  Y.  68,  75.  8  §  23,  ante. 

*  Chalm.  1  Col.  Op.  123  (Am.  •  Lucas,  Chart.  106,  107. 

ed.  143).     See  §  23,  ante.     As  to  "1  Whart.  337. 


22  THE  RULE  AGAINST  PERPETUITIES. 

carefully  considered  case,  it  was  held  that  the  Statute  Quid 
Emptores  was  not  in  force,  and  that  therefore  rent  reserved 
on  a  conveyance  in  fee  simple  was  rent  service  and  could  be 
apportioned.  This  decision  has  always  been  deemed  a  land- 
mark in  the  law  of  Pennsylvania;  but  in  Wallace  v.  Harm- 
stad  l  (1863)  the  Court  ruled  that  there  was  no  tenure  in  the 
State.2  This  ruling  was  unnecessary  to  the  decision  of  the 
case,  and  has  been  far  from  meeting  with  universal  accept- 
ance. It  has  been  severely  criticised  by  Chief  Justice  Shars- 
wood  in  his  Law  Lectures,3  and  by  Mr.  Cadwalader  in  his 
treatise  on  Ground  Rents.4  Their  criticisms  seem  just.  If 
Wallace  v.  Harmstad  had  professed  to  overrule  Ingersoll  v. 
Sergeant,  the  ruling,  whether  right  or  wrong,  would  be  plain 
enough.  But  on  the  contrary  it  is  said:  "That  ground  rent 
is  a  rent  service  was  fundamental  in  Ingersoll  v.  Sergeant,  a 
case  which  has  been  so  often  recognized  and  followed  as  to 
have  become  a  rule  of  property."  5  In  fact  Wallace  v.  Harm- 
stad is  unintelligible.  To  speak  of  rent  service,  or  of  the  Statute 
Quia  Emptores,  in  a  State  where  tenure  is  non-existent,  is  an 
absurdity;  rent  service  and  the  Statute  Quia  Emptores  neces- 
sarily imply  tenure.  They  are  meaningless  terms  without  it. 
Considering  the  high  authority  which  has  always  attached  to 
Ingersoll  v.  Sergeant,  there  may  be  reason,  in  spite  of  Wallace 
v.  Harmstad,  to  believe  that  tenure  still  exists  in  Pennsylvania, 
and  that  the  Statute  Quia  Emptores  does  not. 

§  26  a.  Delaware.  —  Delaware  was  granted  by  the  Duke 
of  York  to  William  Perm  (though  it  appears  to  have  been 
outside  of  the  patent  granted  to  the  Duke),  but  it  was  never 
incorporated  into  Pennsylvania.  There  was  no  exemption 
from  the  Statute  Quia  Emptores  in  the  patent  to  the  Duke, 
and  the  Statute  was  therefore  in  force  over  the  land  held 
under  the  patent,  and  presumably  in  Delaware.6 

1  44  Pa.  492.  «  Chap.    1.      See    Jackson    & 

•  Cf.    Huston,    Land    Titles    in  Gross,    Landl.    &    Ten.    §§    1-11; 

Pa.  374,  and  see  Stuart  v.  Easton,  Foulke,  Treatise,  §  73,  note. 

170  U.  S.  383,  393.  *  44  Pa.  495. 

'  Pp.  207-232.  •  Chalm.  1  Col.  Op.  123  (Am. 


FUTURE  INTERESTS.  23 

§  27.  South  Carolina.  —  On  Dec.  12,  1712,  was  passed  an 
Act  to  put  in  force  in  the  Province  the  English  Statutes  therein 
particularly  mentioned;  the  tenth  section  of  this  Act  declared 
that  all  the  English  Statutes  not  enumerated  and  made  of 
force  in  the  Province  by  the  Act  were  impracticable  in  the 
Province.  The  Statute  Quia  Emptores  was  not  mentioned  in 
this  Act,  and  is  therefore  not  law  in  South  Carolina. 

§  28.  The  important  result  of  this  inquiry,  for  our  present 
purpose,  is  that  in  all  of  the  United  States,  with  the  excep- 
tion of  South  Carolina  and  perhaps  Pennsylvania,  land,  if 
held  at  all,  can  be  held  of  none  but  the  State;  for  in  all  the 
States,  with  the  two  exceptions,  either  there  is  no  tenure,  or, 
if  there  is  tenure,  the  Statute  Quia  Emptores  is  in  force.1 

§  29.  We  recur  now  to  the  question  stated  above,2  namely, 
the  effect  of  the  Statute  Quia  Emptores  on  the  future  in- 
terests allowed  by  the  common  law  or  the  Statute  De  Dora's.3 
Remainders  and  Reversions.  —  If  tenant  in  fee  grants  estates  for 
life  or  in  tail  and  subsequently  grants  the  reversion  in  fee,  the 
tenants  for  Me  or  in  tail  hold  of  the  grantee  of  the  reversion 
after  as  before  the  Statute  Quia  Emptores;  but  if  he  grants  par- 
ticular estates  and,  by  the  same  conveyance,  grants  the  ulti- 
mate remainder  in  fee,  the  tenants  of  the  particular  estates, 
as  well  as  the  ultimate  remainder-man,  hold,  since  the  Statute, 
of  the  chief  lord.4 

§  30.  Interests  arising  on  Condition  broken.  —  These  were 
not  affected  by  the  Statute  Quia  Emptores.  The  right  of  the 
feoffor  to  enter  and  substitute  himself  for  the  feoffee  is  not 

ed.   143).     It  would  seem  that  a  passes  to  the  State,  not  by  escheat, 

notion  must  have  prevailed  that  the  but  in  the  same  way  in  which  the 

Statute  Quia  Emptores  was  not  in  personal  property  of  one  who  dies 

force,  for  the  Delaware  St.  of  24  without  next  of  kin  passes  to  the 

Geo.  II.  c.  119,  §  13,  speaks  of  land  State.     See  §  205,  note,  post. 
escheating  to  the  immediate  land-  2  §  21,  ante. 

lord.    At  present,  by  the  Rev.  Sts.  *  See  §§  7,  18,  ante. 

of  1852,  c.  82,  §  1,  all  land  in  Dela-  4  Anon.,    Dyer,    362  6,    pi.    19. 

ware  escheats  to  the  State.  Lit.     §§    215-217.      2    Inst.    505. 

1  Where  there  is  no  tenure,  the  Leake,  Land  Law,  42,  321.    Challis, 

land  of  one   dying  without  heirs  Real  Prop.  (3d  ed.)  22. 


24  THE  RULE  AGAINST  PERPETUITIES. 

a  reversionary  right,  nor  is  it  dependent  upon  tenure.1  The 
validity  of  conditions  attached  to  fees  has  been  repeatedly 
recognized  in  America.* 

§31.  Possibilities  of  Reverter.  —  These  rights,  as  their 
name  implies,  were  reversionary  rights;  but  a  reversionary  right 
implies  tenure,  and  the  Statute  Quia  Emptores  put  an  end  to 
tenure  between  the  feoffor  of  an  estate  in  fee  simple  and  the 
feoffee.  Therefore,  since  the  Statute,  there  can  be  no  possibility 
of  reverter  remaining  in  the  feoffor  upon  the  conveyance  of 
a  fee;  or,  in  other  words,  since  the  Statute,  there  can  be  no 
fee  with  a  special  or  collateral  limitation;  and  the  attempted 
imposition  of  such  a  limitation  is  invalid.3  The  distinction 
between  a  right  of  entry  for  condition  broken  and  a  possibility 
of  reverter  is  this:  after  the  Statute,  a  feoffor,  by  the  feoffment, 
substituted  the  feoffee  for  himself  as  his  lord's  tenant.  By 
entry  for  breach  of  condition,  he  avoided  the  substitution,  and 
placed  himself  hi  the  same  position  to  the  lord  which  he  had 
formerly  occupied.  The  right  to  enter  was  not  a  reversionary 
right  coming  into  effect  on  the  termination  of  an  estate,  but 
was  the  right  to  substitute  the  estate  of  the  grantor  for  the 
estate  of  the  grantee.  A  possibility  of  reverter,  on  the  other 
hand,  did  not  work  the  substitution  of  one  estate  for  another, 
but  was  essentially  a  reversionary  interest,  —  a  returning  of 
the  land  to  the  lord  of  whom  it  was  held,  because  the  tenant's 
estate  had  determined.4 

1  Lit.  §§  325,  347.  Co.  Lit.  202.  post.  The  Statute  having  no  appli- 

Doe  d.  Freeman  v.  Bateman,  2  B.  cation  to  the  King,  he  could  of 

&  Aid.  168.  course  still  grant  determinable  fees. 

*  See  especially  Van  Rensselaer  Rents  charge  are  not  held  of  any- 

v.  Ball,  19  N.  Y.  100;  Same  v.  one;  and  if  A.  who  has  a  rent  charge 

Dennison,  35  N.  Y.  393,  400.  in  fee  grants  it  for  a  less  estate  to 

1  See  article  on  Determinable  B.,B.  does  not  hold  of  A.;  so  it  would 

Fees  in  American  Jurisdictions,  by  seem  that  the  Statute  Quia  Emp- 

J.  M.  Zane,  17  Harv.  Law  Rev.  tores  does  not  inhibit  a  rent  charge 

297;  30  Cyc.  Law  &  P.,  1474,  note  being  created  de  novo  in  fee  simple 

40.  determinable,  nor  an  existing  rent 

4  It  has  been  suggested  that  the  charge  being  granted  in  fee  simple 

possibility  of  reverter  passed  to  the  determinable;  and  that  the  law  ia 

chief  lord,  but  as  to  this  see  §  776,  the  same  as  to  other  like  incor- 


FUTURE  INTERESTS.  25 

§  32.  In  accordance  with  the  doctrine  of  the  foregoing  sec- 
tion, no  possibility  of  reverter  after  a  determinable  l  fee  has 
been  sustained  in  England  since  the  Statute  Quia  Emptores. 
A  fee  simple  subject  to  a  conditional  limitation,  that  is,  to  a 
shifting  use  or  executory  devise,  is  sometimes  called  a  deter- 
minable fee;  but  this  is  not  technically  exact.  A  deter- 
minable fee  is  one  subject  to  a  special  limitation;  that  is,  a 
limitation  which  marks  the  original  bounds  of  the  estate,  and 
after  which,  in  case  of  a  fee,  no  other  estate  can  be  granted. 
A  conditional  limitation,  as  the  term  is  commonly  used,  cuts  off 
the  first  estate  and  introduces  another.  An  estate  to  A.  and  his 
heirs,  tenants  of  the  Manor  of  Dale,  is  an  instance  of  a  deter- 
minable fee.  An  estate  to  A.  and  his  heirs,  but  if  he  dies 
unmarried,  then  to  B.  and  his  heirs,  is  a  fee  simple  subject 
to  a  conditional  limitation.  Determinable  fees  were  good  at 
common  law,  but  were  done  away  with  by  the  Statute  Quia 
Emptores.  Conditional  limitations  were  not  good  at  common 
law;  they  were  first  introduced  by  the  Statutes  of  Uses  and  of 
Wills.2 

§  33.  The  effect,  however,  of  the  Statute  Quia  Emptores  in 
putting  an  end  to  determinable  fees  has  been  often  overlooked, 
though,  as  has  just  been  said,  no  such  fee  has  been  actually 
sustained  in  England  by  decision  since  the  Statute.  The 
dicta  of  English  judges  which  support  or  assume  the  validity 
of  such  fees  since  the  Statute  are  as  follows:  — 

(1)  Choke,  J.8  (1467):  "As  if  I  give  land  to  a  man  to 
have  to  him  and  his  heirs  in  fee  so  long  as  John  A'Down  has 
issue  of  his  body,  in  that  case  the  feoffee  will  hold  of  his  Lord, 
etc.;  yet  if  John  A'Down  dies  without  heir  of  his  body,  etc., 

poreal    hereditaments,     such     as  See  Challis,  Real  Prop.    (3d  ed.), 

profits    and    easements    in    gross,  c.  19. 

There  is  next  to  nothing  in  the  *  On   the   difference   between  a 

books  on  the  subject;  but  cf.  A.  G.  special  limitation  and  a  conditional 

v.  Cummins,  [1906]  1  I.  R.  406.  limitation,    and    on    the    different 

1  In  deference  to  Mr.  Challis's  meanings  of  the  latter  term,  see 

opinion,  the  employment  of  "quali-  Gray,  Restraints  on  Alienation  (2d 

fied"    as   synonymous   with    "de-  ed.),  §  22,  note, 

terminable"    has     been     avoided.  »  7  Edw.  IV.  12  a,  pi.  2. 


26  THE  BULB  AGAINST  PERPETUITIES. 

in  that  case  I  may  well  enter,  etc.    But  not  by  escheat,  etc., 
but  because  the  feoffment  is  determined."  l 

(2)  Counsel  (1535)  says:2  "If  I  give  land  to  you  and  to 
your  heirs  so  long  as  such  a  tree  shall  live,  that  is  a  good  fee 
simple  determinable  for  the  life  of  the  tree,  and  I  see  no  diver- 
sity in  reason  why  a  fee  simple  shall  not  be  as  well  deter- 
mined by  the  life  of  a  man  as  by  the  life  of  a  tree,  for  it  is  all 
one  in  reason.    So  it  seems  to  me  that,  etc."    Baldwin  (Chief 
Justice  of  the  Common  Pleas)  "You  say  well." 

(3)  Poole  v.Needham3  (1608).    Ejectment.     J.  was  tenant 
in  tail  male,  remainder  in  fee  to  T.    T.  granted  his  remainder 
to  the  Queen  in  fee,  as  long  as  any  issue  male  of  J.  should 
live.    J.  suffered  a  common  recovery,  under  which  the  plain- 
tiff claimed,  and  J.  died  without  issue.    The  defendant,  as  ser- 
vant to  T.,  entered.    Judgment  for  the  plaintiff.    The  Court 
held  that  the  grant  of  the  remainder  to  the  Queen  was  void 
because  the  estate  granted  could  never  come  into  possession, 
and  that  therefore  the  recovery  barred  T.'s  remainder.    They 
seem  to  have  been  of  opinion  that  the  Queen  did  not  take  a 
fee  simple  absolute;  that  the  fee  simple  determinable  on  the 
termination  of  the  particular  estate  tail  was  void,  because 
there  was  no  possibility  of  advantage  in  it;  but  that  if  it  had 
been  a  reversion  that  had  been  so  granted  to  the  Queen,  the 
grant  would  have  been  good,  on  account  of  the  attendant 
services,  etc.    T.  having  entered  upon  the  plaintiff,  the  plaintiff 
was  entitled  to  proceed  against  him  in  ejectment  for  distur- 
bance of  possession.4    If  the  grant  to  the  Queen  was  void, 
then  T.'s  estate  was  barred  by  the  recovery;  if  the  grant  to  the 
Queen  passed  a  fee  simple  absolute,  then  T.  had  no  estate  to  be 
barred.    The  judgment  for  the  plaintiff  was  therefore  good  qua- 
cunque  via,  and  the  remarks  of  the  Court  on  the  Queen's  having 
been  granted  a  determinable  fee  were  obiter.  In  Noy's  report  of 

1  See  §  35,  note  4,  post.  B.  1.    Perry  v.  Clissold,  [1907]  A. 

*  27  Hen.  VIII.  29,  pi.  20.  C.  73.     Professor  J.  B.  Ames  in  3 

»  Yelv.  149.  Harv.  Law  Rev.  323-325. 

4  Asher  v.  Whitlock,  L.  R.  1  Q. 


FUTURE   INTERESTS.  27 

this  case,1  it  is  said:  "And  this  case  was  put  by  the  justices. 
Land  is  given  to  A.  and  his  heirs,  so  long  as  B.  hath  issue  male, 
etc.  B.  dies,  his  wife  being  big  with  a  son,  who  is  afterwards 
born.  Yet  the  estate  of  A.  is  determined,  and  judgment  was 
given  accordingly." 

(4)  Liford's  Case2  (1614).    In  this  case  it  is  said:  "A  man 
may  have  an  inheritance  in  fee  simple  in  lands,  as  long  as 
such  a  tree  shall  grow,  27  Hen.  VIII.  29  6,  because  a  man 
may  have  an  inheritance  in  the  tree  itself."    In  1  Roll.  R.  95, 
101,  where  the  case  is  reported  sub  nom.  Stampe  v.  Clinton, 
the  expression  is,  "If  land  is  given  as  long  as  an  oak  shall 
grow,  it  is  an  inheritance  ('  tarn  diu  que  querke  crescera  ceo  est 
inherit ')."    It  is  not  clear  whether  the  remark  is  to  be  attrib- 
uted to  counsel  or  to  the  Court. 

(5)  Pells  v.  Brown3  (1620).    Here  Mr.  Justice  Houghton, 
in  his  argument,  puts  this  case:  "If  a  man  give  or  devise 
lands  to  one  and  his  heirs  as  long  as  J.  S.  hath  issue  of  his 
body,  he  shall  not,  by  recovery,  bind  him  who  made  this  gift, 
without  making  him  a  party  by  way  of  vouchee." 

(6)  Gardner  v.  Sheldon*  (1671).     Vaughan,  C.  J.,   speak- 
ing to  a  point  which  he  expressly  declares  is  not  material  to 
the  case,  says: 5  "An  estate  to  a  man  and  his  heirs  as  long  as 
John  Stiles  hath  any  heir,  which  is  no  absolute  fee  simple, 
is  doubtless  as  durable  as  the  estate  in  fee  which  John  Stiles 
hath  to  him  and  his  heirs,  which  is  an  absolute  fee  simple." 6 

(7)  Ayres  v.  Falkland7  (1697).    Treby,  C.  J.,  and  Powell, 
J.,  say:  "A  man  may  have  a  possibility  of  reverter  where  he 
cannot  limit  a  remainder;  as  if  A.  gives  lands  to  B.  and  his 
heirs  during  the  time  that  such  an  oak  shall  grow,  he  hath  a 
possibility  of  reverter,  though  no  remainder  can  be  limited." 

(8)  Idle  v.  Cook  8  (1705).     Powell,  J.,  says:    "A  fee  tail 
was  a  fee-simple  at  common  law;  for  there  were  three  sorts 

1  P.  132.  «  See  also  pp.  269,  270. 

1  11  Co.  46  &,  49  o.  7  1  Ld.  Raym.    325;   sub  nom. 

1  Cro.  Jac.  590,  593.  Eyres  v.  Faulkland,  1  Salk.  231. 
4  Vaugh.  259.  8  1  P.  Wms.  70,  74,  75;  2  Ld. 

«  P.  273.  Raym.  1144,  1148. 


28  THE   RULE  AGAINST  PERPETUITIES. 

of  fee-simples,  absolute,  qualified  (which  was  to  time  only, 
scil.  as  long  as  such  a  tree  stood,  or  as  J.  S.  had  heirs  of  his 
body;)  and  also  fee-simple  conditional,  which  was  limited 
as  to  the  heirs  inheritable."  He  then  states  the  effect  of  the 
Statute  De  Donis  on  the  last  class.  His  statement  is  correct 
as  to  the  law  existing  before  the  passage  of  the  Statute  De 
Donis,  which,  it  will  be  remembered,  was  before  the  date  of 
the  Statute  Quia  Emptores. 

(8  a)  Attorney-General  v.  Pyle l  (1738).  A  freehold  mes- 
suage was  devised  to  the  charity-school  at  R.,  the  rents  and 
profits  to  be  applied  for  the  benefit  of  the  school,  so  long  as 
it  should  "continue  to  be  endowed  with  charity."  Lord  Hard- 
wicke,  C.,  said:  "Where  a  sum  of  money  is  given  to  a  charity, 
so  long  as  it  shall  continue  to  be  endowed  with  charity,  it  is 
only  given  quousque,  and  when  it  ceases,  if  it  is  a  gift  of  real 
estate,  it  shall  fall  into  the  inheritance  for  the  benefit  of  the 
heir,  if  personal,  into  the  residuum"  and  he  declared  that 
the  rents  and  profits  of  the  messuage  ought  to  be  applied  to 
the  benefit  of  the  charity-school  at  R.,  "so  long  as  the  said 
charity-school  shall  continue  to  be  endowed  with  charity,"  and 
he  decreed  the  heir  of  the  testator  "to  convey  the  said  mes- 
suage to  the  other  defendants,  the  trustees  of  the  charity."  It 
would  seem  that  the  legal  estate  conveyed  to  the  trustees  was 
a  fee  simple,  and  that  any  interest  of  the  heir  was  only  equi- 
table, as  a  resulting  trust.2 

(9)  Lethieuttier  v.  Tracy 8  (1754).  Lord  Hardwicke  is  re- 
ported by  Atkins  and  Ambler  to  have  said  that  if  an  estate  is 
given  to  trustees  until  A.'s  reaching  twenty-one,  and  on  A/s 
attaining  that  age,  then  to  him,  the  trustees  take  a  determin- 
able  fee  with  a  vested  remainder  to  A.;  but  in  Ambler  he  is 
previously  made  to  call  the  estate  of  the  trustees  a  chattel 

1  1  Atk.  435.  for  him,  and  finds  the  order  and 

1  See    In     re     Randell,     infra;  decree  to  be  as  stated  in  Atkins. 

5§  327,  603 1,  post.     The  author's          »  3   Atk.    774;    Ambl.   204;    3 

learned    friend,    T.    Cyprian    Wil-  Kenyon,  40. 

liams,  Esq.,  has  had  the  kindness 

to  examine  the  Registrar's   Book 


FUTURE   INTERESTS.  29 

interest,  and  it  seems  incredible  that  Lord  Hardwicke  should 
have  spoken  of  a  vested  remainder  after  a  detenninable 
fee.1 

(10)  Wellington  v.  Wellington2  (1768).     Here,  on  a  devise 
upon  default  of  issue  of  the  testator  to  trustees  until  debts  and 
legacies  were  paid  and  then  to  A.,  the  Court  of  King's  Bench 
certified  that  the  trustees  took  a  detenninable  fee,  but  the  only 
point  in  issue  was  whether  the  trustees  took  a  present  or  a 
future  estate.    There  is  no  opinion.3 

(11)  A.   G.   v.   Cummins.*     The   Crown  granted    certain 
quit-rents  to  A.  and  his  heirs  till  he  should  be  paid  £5,000. 
Palles,  C.  B.,  in  delivering  the  opinion  held  that  the  Crown  had 
a  possibility  of  reverter  in  the  quit-rents.    He  did  not  refer 
to  the  Statute  Quia  Emptores,  and  there  was  no  need  that  he 
should,  for  the  Statute  has  no  application  to  grants  by  the 
Crown. 

§  34.  Possibilities  of  reverter  have  also  been  spoken  of  by 
counsel  and  text-writers  as  if  they  were  valid  interests,  without 
paying  any  regard  to  the  Statute  Quia  Emptores.*  But  the 
English  books  reveal  no  actual  case  since  the  passing  of  the 
Statute  down  to  modern  times,  in  which  a  determinable  fee  with 
a  possibility  of  reverter  has  been  held  to  have  been  created; 

1  See  Butler's   note   to  Fearne,  Armitage,  2  B.  &  C.  202.    Co.  Lit. 
C.  R.  226;  Blunt's  note  to  Ambl.  1  6,   27  a.     Shep.   Touch.   101.     1 
206,  207;  and  the  note  to  Waiter  Prest.  Est.  431-433,  440-444,  481, 
v.  Hutchinson,  1  B.  &  C.  742.  482,  508,  509;  and  many  modern 

2  1  W.  Bl.  645;  4  Burr.  2165.  authors.    Mr.  Preston,  loc.  cit.,  has 
1  See  also  Anon.,   Dyer,  300  b,      a  list  of  instances  of  detenninable 

where  the  case  referred  to  by  the  fees,  and  this  list  is  given  in  a 
judges  seems  to  have  been  simply  revised  form  by  Mr.  Challis,  Real 
one  of  a  springing  use;  andCommis-  Prop.  (3d  ed.)  254-260,  who  says 
sioners  of  Donations  v.  De  Clifford,  it  is  a  "list  of  determinable  or 
1  Dr.  &  W.  245.  collateral  limitations,  which  have 
4  [1906]  1  I.  R.  406.  been  actually  used  or  proposed  in 
•  27  Hen.  VIII.  29,  pi.  20.  Wai-  books  of  authority  to  be  used  in 
singham's  Case,  2  Plowd.  557.  Ed-  the  limitation  of  determinable  fees." 
ward  Seymor's  Case,  10  Co.  97  b.  It  is  believed  that  §  33,  ante,  con- 
Anon.,  Jenk.  Cent.  5.  Hall  v.  Deer-  tains  all  the  dicta  of  judges  in- 
ing,  Hardr.  148.  Cardigan  v.  eluded  in  Mr.  Challis's  list. 


30  THE   RULE   AGAINST  PERPETUITIES. 

and  the  learned  reader  need  not  be  reminded  that  little  reliance 
is  to  be  placed  on  statements,  however  often  repeated,  which 
have  never  been  brought  to  the  test  of  decision.  "The  mere 
statement  and  restatement  of  a  doctrine,  the  mere  repetition 
of  the  cantilena  of  lawyers,  cannot  make  it  law,  unless  it  can 
be  traced  to  some  competent  authority,  and  if  it  be  irreconcil- 
able to  some  clear  legal  principle."  * 

§  35.  On  the  other  hand,  in  Christopher  Corbet's  Case,  in 
the  Common  Pleas,  as  reported  by  Sir  Edmund  Anderson,  the 
Chief  Justice,2  where  the  question  was  whether  a  proviso  for 
the  cesser  of  an  estate  tail  upon  an  attempt  to  bar  the  entail  was 
void,  the  Chief  Justice,  in  his  opinion,  remarks:3  "Intend- 
ments  should  be  guided  by  the  rules  of  the  law,  and  not  by 
idle  conceits,  and  to  prove  this  further,  13  Hen.  VII. ,  11  Hen. 
VII.,  21  Hen.  VI.  fol.  37,4  it  is  held,  and  the  law  seems  plain, 
that  if  land  be  given  to  one  and  his  heirs  so  long  as  J.  S.  has 
heirs  of  his  body,  the  donee  has  a  fee  and  can  alien  it,  not- 
withstanding there  be  a  condition  that  he  shall  not  alien;  and 
11  lib.  Assize,  pi.  8,5  a  like  case  is  put  and  held  as  above:  and 
there  if  land  be  given  to  one  and  his  heirs  so  long  as  J.  S.  or 
his  heirs  may  enjoy  the  Manor  of  D.,  these  words  (so  long) 
are  utterly  vain  and  idle,  and  do  not  abridge  the  estate  .  .  . 
and  yet  it  is  to  be  admitted  that  one  may  have  an  estate 
in  fee  determinable,  but  never  by  the  act  and  consent  of  the 
parties,  without  any  entry  for  condition  broken  or  title  defeas- 
ible; and  to  show  briefly  how  this  will  be  is  now  convenient, 

1  O'Connell  v.  The  Queen,     11  condition  to  the  donee  in  tail  at 

Cl.  &  F.  373.  the    Common    Law,    and    to    the 

1  2  And.  134.  feoffee  of  a  fee  simple,  so  long  as  J. 

1  Pp.  138,  139.  at  S.  has  issue;  in  these  cases  the 

4  These  citations  are  corrected  condition  is  void."    Townshend,  J., 

by  Mr.  Sanders,  1  Uses  (5th  ed.)  "It  seems  the  condition  in  both 

210,    into   13    Hen.    VII.    Easter  cases  is  good." 
Term,   fol.   24;    11   Hen.   VII.   pi.  •  Citing    a    case    where     there 

25;  21  Hen.  VI.  Hil.  pi.  21.     The  was  a  grant   of  a  rent   "as   long 

only  one  of  importance  is  the  first,  as  the   grantor   and   his  assignees 

where  we  find  this  colloquy  in  the  should  hold  the  house,  etc.,  and  it 

Common  Pleas.    Vavasour,  J.,  "A  was  adjudged  freehold,  etc." 


FUTURE   INTERESTS.  81 

and  it  will  be  if  the  lord  of  a  villein  being  tenant  in  tail  enters 
on  the  land,  etc.,  he  and  his  heirs  will  enjoy  the  land  so  long 
as  the  villein  has  issue,  and  then  his  estate  will  determine; 
so  he  who  recovers  rent  against  a  tenant  in  tail,  'que  ill  teign 
in  tail  '  [out  of  what  he  holds  in  tail?] ;  or  [suppose]  that  tenant 
in  tail  of  land  be  attainted  of  treason,  the  King  will  have  a 
fee  of  the  land  entailed  determinable  on  death  without  issue, 
and  has  no  greater  estate;  but  these  estates  last  mentioned 
are  not  made  by  the  first  creation  of  these  estates,  but  by 
matter  coming  afterwards  by  other  means."  1 

§  36.  Mr.  Sanders  was  the  first  author  to  distinctly  recog- 
nize, or  at  any  rate  to  distinctly  state,  that  the  Statute  Quia 
Emptores  put  an  end  to  determinable  fees.2  He  says  that  his 
remarks  are  taken  from  an  opinion  of  his  own,  "which  was 
subsequently  well  considered  by  two  gentlemen  of  eminence 
at  the  bar,  and  signed  by  them."  The  Commissioners  on  Real 
Property  (Sir  John  Campbell  and  Messrs.  Tinney,  Duval, 
Hodgson,  Duckworth,  Brodie,  and  Tyrrell,  all,  except  the 
chairman,  among  the  most  eminent  real-property  lawyers  of 
their  time),  in  their  third  Report,  made  in  1832,3  speaking 
of  a  devise  of  an  estate  to  A.  B.  and  his  heirs,  on  condition 
that  they  use  the  name  and  arms  of  C.  D.,  say:  "Some  have 
thought  that  the  will  passed  a  fee  simple,  determinable  upon 
the  non-performance  of  the  condition;  but  it  was  not  a  de- 

1  When  a  tenant  in  tail  makes  a  It    was    argued   in   Champernon's 

conveyance,  e.  g.  a  feoffment,  which  Case,  4  Hen.  VI.  19  6,  21  a,  that 

operates  as  a  discontinuance,  but  when  a  tenant  in  tail  had  made  a 

leaves  to  the  issue,  or  at  any  rate  lease  for  life  inconsistent  with  the 

to   the   reversioner   or   remainder-  fee  tail,  and  thereby  worked  a  dis- 

inun,  the  right  to  a  formedon,  the  continuance,  and  given  himself  a 

grantee  has  a  base  fee  which,  while  base  fee  in  reversion,   he  held  of 

it    lasts,    descends    to    his    heirs.  the  principal  lord,  and  not  of  the 

Leake,  Land  Law,  40,  319.    Challis,  donor;  but  the  Court  decided  that 

Real  Prop.  (3d  ed.),  c.  22.    As  An-  he  still  held  of  the  donor.     Base 

derson,   C.   J.,    remarks,   such   an  fees  would  therefore  seem  not  to 

estate  is  not  and  cannot  be  created  have  been  affected  by  the  Statute 

by  the  intention  of  the  parties;  it  Quia  Emptores. 
results  by  operation  of  law  from  *  1  Sand.  Uses  (5th  ed.)  208. 

their  intention  not  being  fulfilled.  *  P.  36. 


32  THE  RULE  AGAINST  PERPETUITIES. 

terminable  fee  in  the  proper  sense  of  the  expression,  if  (as  is 
perhaps  the  true  state  of  the  law  on  this  subject)  a  determin- 
able  fee  was  an  estate  before  the  Statute  of  Quia  Emptores,  as 
upon  a  grant  to  A.  B.  and  his  heirs,  so  long  as  I.  S.  and  his 
issue  should  live,  in  which  case  the  donor  retained,  in  the 
nature  of  a  right  to  an  escheat,  a  reversionary  interest  which 
arose  on  the  death  of  I.  S.  and  the  failure  of  his  issue.  But 
the  Statute  of  Quia  Emptores,  by  destroying  the  tenure  be- 
tween the  donor  and  donee,  in  cases  where  the  fee  was  granted 
subsequently  to  the  Statute,  put  an  end  to  any  right  of  re- 
verter  on  such  grants;"  and  reference  is  made  to  the  passage  in 
Anderson,  above  quoted.1  Most  of  the  careful  recent  writers 
have  adopted  this  view.2 

§  37.  The  history  of  the  only  devise  which  in  recent  times 
has  been  claimed  in  England  as  raising  a  determinable  fee  is 
very  singular.  The  Statute  Quia  Emptores  was  not  referred 
to,  but  the  final  decision  is  a  strong  authority  that  deter- 
minable  fees  do  not  now  exist.  Collier  v.  M'Bean3  (1865) 
was  a  bill  by  a  vendor  for  specific  performance.  Sir  John 
Romilly,  M.  R.,  held  that  a  devise  to  trustees  to  hold  dur- 
ing the  life  of  A.  B.,  and  also  until  the  testator's  debts  and 
legacies  were  paid,  was  a  determinable  fee.  Under  this  con- 
struction the  plaintiff  did  not  make  a  good  title.  The  Lords 
Justices 4  dismissed  an  appeal  on  the  ground  that,  if  the  Master 
of  the  Rolls  thought  the  title  bad,  it  was  too  doubtful  to  be 
forced  on  a  purchaser;  but  Sir  J.  L.  Knight  Bruce,  L.  J.,  stated 
his  impression  to  be  that  the  trustees  took  a  fee  simple,  and 
that  the  title  was  good.  In  1873  a  case  involving. the  same 
question  under  the  same  will  came  before  the  then  Master 
of  the  Rolls,  Sir  George  Jessel.  Collier  v.  Walters.5  The 
Master  of  the  Rolls  doubted  whether  he  was  not  bound  to 

1  And  see  Re  Machu,  21  Ch.  D.  Law  of  Property  (4th  ed.)  36.    See 

838,  commented  on  in  Gray,  Re-  Mr.  Sweet's  note  to  Challis,  Real 

st  mints  on  Alienation,  §  22,  note.  Prop.  (3d  ed.)  439. 

1  Leake,  Land  Law,  36.     Mars-  »  34  Beav.  426. 

den,  Perp.  71,  72.    Pollock,  Land          «  L.  R.  1  Ch.  81. 
Laws  (3d  ed.)  226-228.    Edwards,  •  L.  R.  17  Eq.  252. 


FUTURE   INTERESTS.  33 

follow  the  decree  In  the  former  case;  but,  on  the  matter  being 
mentioned  at  his  request  to  the  Lords  Justices,  they  were  of 
opinion  that  it  was  open  to  him  to  hear  the  case  unfettered 
by  the  former  decisions.  The  result  is  thus  given  by  him : l 
"When  the  case  comes  to  be  argued  on  the  footing  that  I  was 
not  to  be  bound  by  that  decision,  neither  counsel  asserts  that 
that  decision  is  right,  but  both  positively  abandon  it:  both  the 
leading  counsel  and  the  junior  counsel,  on  consideration,  say 
that  they  cannot  support  the  decision  of  the  Master  of  the 
Rolls.  That  is  a  very  strong  and  a  very  peculiar  circumstance. 
His  Lordship  having  determined  that  according  to  the  true 
construction  of  the  will  there  was  a  determinable  fee,  neither 
of  the  counsel  for  the  plaintiff  will  argue  in  support  of  that 
proposition  at  all.  In  fact,  there  is  not  any  authority  to  be 
found  for  any  such  determinable  fee.  I  have  looked  at  an 
enormous  number  of  cases  to  see  if  I  could  find  such  an 
authority,  but  I  have  been  quite  as  unsuccessful  as  the  coun- 
sel for  the  plaintiff,  and  I  think  there  is  no  such  case  to  be 
found.2  I  think,  therefore,  I  may  dismiss  the  interpreta- 
tion of  the  will  given  by  Lord  Romilly  as  untenable."  3 

§  38.  In  Pennsylvania  (if  Wallace  v.  Harmstad 4  is  un- 
sound) and  hi  South  Carolina  tenure  exists  and  the  Statute 
Quia  Emptores  is  not  in  force.  In  these  States,  therefore,  apart 
from  the  question  of  remoteness,5  determinable  fees  may  be 
valid.  In  Scheetz  v.  Fitzwater,6  Penn.  R.  R.  Co.  v.  Parke,7 

1  P.  261.  .  »  See  Conner  v.  Waring,  52  Md. 

1  Mr.    Challis,   in    his    treatise  724,  734;  §  40  (8)  post;  and  McDon- 

on  Real  Property  (3d  ed.)  259,  says  nell  v.  Mclsaac,  1  Haz.  &  Warb. 

that  Bagshaw  v.  Spencer,   1  Ves.  353;  Pet.  P.  E.  I.  236. 
Sr.  142, 144,  "seems  to  have  escaped  The    subject    of    determinable 

the  diligence  of  Sir  George  Jessel,  fees  is  more  fully  discussed  in  App. 

M.  R.,"  but  in  that  case  Lord  Hard-  E,  §§  774  et  seq.,  post. 
wicke,  C.,   held   that  a  devise   to  *  44  Pa.  492.     See  §  26,  ante. 

trustees  till  debts  were  paid  car-  6  As  to  this  see  §  312,  post. 

ried  the  legal  fee;  he  held  not  that  «  5  Pa.  126. 

the  devise  carried  a  fee  simple  de-  7  42  Pa.  31. 

terminable,  but  that  it  carried  "the 
whole  fee." 


34 


THE  RULE  AGAINST  PERPETUITIES. 


Henderson  v.  Hunter,1  and  Slegel  v.  Lawer,2  it  was  assumed 
that  fees  simple  determinable  might  be  created.3 

§  39.  In  the  other  States  there  is  either  no  tenure  at  all, 
or,  where  there  is  tenure,  there  is  no  good  reason  to  doubt  the 
existence  of  the  Statute  Quia  Emptores.  In  neither  case  can 
there  be  any  possibility  of  reverter.  As  in  England,  so  in 
the  United  States,  there  are,  however,  several  cases  which 
speak  of  such  interests  as  possible.4 

§  40.  The  cases,  however,  in  which  possibilities  of  reverter 
have  come,  or  have  been  supposed  to  come,  before  American 
courts  are  few.  Besides  the  Pennsylvania  cases5  they  are  as 
follows : 

(1)  Wood  v.  Cheshire.6  This  case  states  that  the  Superior 
Court  in  the  same  suit  had  held,  at  July  Term,  1854,  that 
an  estate  granted  to  a  county  for  so  long  a  time  as  the  land 
should  be  used  as  a  court-house  terminated,  without  entry, 
upon  the  land  not  being  so  used.  No  such  case  is  reported 


1  59  Pa.  335. 

•  148  Pa.  236. 

1  See  also  Union  Canal  Co.  v. 
Young,  1  Whart.  410,  427,  428; 
Kerlin  v.  Campbell,  15  Pa.  500; 
First  Methodist  Church  v.  Old 
Columbia  Co.,  103  Pa.  608;  Court- 
ney v.  Keller,  4  Pennyp.  38;  Gum- 
bert's  Appeal,  110  Pa.  496;  Pa. 
Schuylkill  Valley  R.  R.  Co.  v. 
Paper  Mills,  149  Pa.  18;  Scott  v. 
Murray,  218  Pa.  186;  Pitcairn  v. 
Cemetery  Co.,  229  Pa.  18;  Riggs 
t>.  New  Castle,  229  Pa.  490;  Perm. 
Horticultural  Soc.  v.  Craig,  240 
Pa.  137;  Speese  v.  Schuylkill  River 
E.  Side  R.  R.  Co.,  23  Pa.  C.  C.  17; 
Foulke,  Treatise,  §§  27,  73,  74. 
Cf.  Stuart  v.  Easton,  170  U.  S. 
383. 

4  Woreter  v.  Gt.  Falls  Mfg.  Co., 
41  N.  H.  16,  22.  Congregational 
Soc.  v.  Stark,  34  Vt.  243.  Curtis  v. 
Gardner,  13  Met.  457,  461.  Mayor 


of  New  York  v.  Stuyvesant,  17  N. 
Y.  34.  Reed  v.  Stouffer,  56  Md. 
236,  254.  Newbold  v.  Glenn,  67 
Md.  489.  Hall  v.  Turner,  110  N. 
C.  292.  Thayer  v.  McGee,  20  Mich. 
195,  211.  Delhi  School  District  v. 
Everett,  52  Mich.  314.  Fletcher 
v.  Fletcher,  88  Ind.  418.  Wiggins 
Ferry  Co.  v.  Ohio  &  Miss.  R.  Co., 
94  111.  83.  McDaniel  v.  Watson, 
4  Bush.  234.  Davis  v.  Memphis 
&  Charleston  R.  R.  Co.,  87  Ala. 
633.  Peyton,  C.  J.  (dissenting),  in 
Kilpatrick  v.  Graves,  51  Miss.  432. 
See  Friedman  v.  Sterner,  107  111. 
125;  Flaten  v.  Moorhead,  51  Minn. 
518;  Church  v.  Young,  130  N.  C.  8; 
Rowland  v.  Warren,  10  Oreg.  129; 
Boiling  v.  Petersburg,  8  Leigh, 
224,  234;  Carney  v.  Kain,  40  W. 
Va.  758,  812,  816. 

8  §  38,  ante. 

•  32  N.  H.  421. 


FUTURE   INTERESTS.  35 

in  the  decisions  of  the  Court  for  July  Term,  1854,  or  any- 
where else  in  the  New  Hampshire  Reports. 

(2)  Jamaica  Pond  Aqueduct  Co.  v.  Chandler.1  In  this 
case  a  fee  simple  determinable  was  said  to  be  created,  but 
all  that  was  necessary  for  the  decision  was  to  find  that  a  fee 
was  created;  whether  determinable  or  absolute  was,  as  is 
observed  in  Chandler  v.  Jamaica  Pond  Aqueduct,2  immaterial. 

(2  a)  First  Universalist  Society  v.  Boland.3  Deed  of 
land  to  a  religious  society  to  hold  so  long  as  it  shall  be  by 
the  society  or  its  assigns  devoted  to  the  uses,  interests,  and 
support  of  certain  doctrines;  and  when  it  should  be  diverted 
from  said  support  to  any  other  uses  then  the  title  of  the  society 
or  its  assigns  should  cease,  and  be  vested  in  forty-one  persons, 
one  of  whom  was  the  grantor.  A  church  was  built  on  the 
land,  and  had  been  used  for  worship  according  to  said  doc- 
trines, but  the  society  having  contracted  to  sell  the  land,  the 
vendee  refused  to  accept  a  deed  on  the  ground  that  the  society 
had  not  a  good  title,  and  a  bill  brought  by  the  society  for 
specific  performance  was  dismissed.  The  Court  said  that  the 
society  had  a  determinable  fee,  and  the  gift  over  being  void, 
there  was  a  possibility  of  reverter  in  the  grantor.  This  is  the 
only  case  in  the  books  in  which  the  effect  of  the  Statute  Quia 
Emptores  on  determinable  fees  is  discussed,4  and  it  therefore 
calls  for  careful  consideration. 

The  discussion  and  the  remarks  of  the  Court  on  deter- 
minable fees  seem  to  have  been  uncalled  for.  The  bill  was  not, 
as  in  Brattle  Square  Church  v.  Grant,5  a  bill  for  leave  to  sell 
land  held  on  a  charitable  trust  and  to  reinvest  the  proceeds; 
it  was  a  bill  by  the  vendor  of  land  for  specific  performance, 
which  must  be  dismissed  unless  the  plaintiff  had  both  the  legal 
and  the  equitable  title.  The  plaintiff  held  the  land  on  a  chari- 
table trust.  This  trust  was  either  a  perpetual  one,  in  which  case, 
of  course,  the  plaintiff,  without  the  aid  of  the  Court,  could  not 

1  9  Allen,  159.  4  But  see  now  §  40  a,  post. 

1  125  Mass.  544,  547.  •  3  Gray,  142. 

*  155  Mass.  171. 


36  THE  RULE  AGAINST  PERPETUITIES. 

make  a  good  title,  or  the  trust  was  for  a  limited  time,  in 
which  case  there  would  be  a  resulting  trust  for  the  grantor, 
and  here  again  the  plaintiff  could  not  make  a  good  title.  The 
real  question  was  not  what  was  the  character  of  the  plaintiff's 
legal  title,  but  whether  that  title  was  subject  to  a  trust.  There 
seems  to  have  been  no  occasion  to  consider  whether  the  legal 
title  of  the  plaintiff  was  anything  but  a  fee  simple. 

It  has  been  ruled  that  property  may  be  given  to  a  trustee 
to  hold  on  a  terminable  charitable  trust,  and  that,  when  this 
trust  terminates,  there  is  a  resulting  trust  for  the  grantor. 
There  are  several  cases  to  this  effect,1  but  in  none  of  them  is 
there  any  suggestion  that  the  trustee's  legal  title  is  a  deter- 
minable  fee.2 

The  case  of  First  Universalist  Society  v.  Boland  should  be 
compared  with  the  leading  decision  of  Brattle  Square  Church  v. 
Grant?  In  that  case  land  was  devised  to  a  religious  society 
upon  the  "express  condition  and  limitation"  that  it  should  be 
put  to  a  certain  charitable  use;  "and  in  case  the  same  is  not 
improved  for  this  use  only,"  the  testatrix  declared  that  the 
devise  was  void,  and  that  the  land  should  revert  to  her  estate, 
and  she  gave  it  to  a  nephew  and  his  heirs.  In  First  Universalist 
Society  v.  Boland  land  was  conveyed  to  a  religious  society  to 
hold  so  long  as  it  should  be  devoted  to  certain  charitable  uses, 
and  when  it  should  be  diverted  to  other  uses,  then  over.  In 
the  former  case  it  was  decided  that  the  society  held  the  land 
on  a  charitable  trust,  and  might  be  authorized  to  sell  the  land 
and  invest  the  proceeds  to  hold  on  the  same  trusts,  and  that  the 
heirs  of  the  testatrix  had  no  rights.  In  the  latter  case  it  was 
said  that  the  donor  had  a  possibility  of  reverter,  when  the  land 
was  put  to  other  uses. 

In  both  cases  there  was  a  holding  upon  a  charitable  trust, 
and  in  both  there  was  a  conditional  limitation  which  was  void  < 
for  remoteness.    There  was  said  to  be  a  possibility  of  reverter 
in  the  second  case,  but  not  in  the  first,  and  yet  the  only  differ- 

1  They   are    collected,    §  603 1,  *  See  §  41  a,  post, 

pott.  »  3  Gray,  142. 


FUTURE  INTERESTS.  37 

ence  seems  to  be  that  in  the  first  case  the  land  was  given  to  be 
held  upon  the  express  condition  and  limitation  that  it  should 
be  put  to  a  certain  charitable  use,  and  in  case  it  was  not  im- 
proved to  this  use  only  that  it  should  revert,  and  be  given 
to  another,  and  in  the  second  case  land  was  to  be  held  so 
long  as  it  was  put  to  a  certain  charitable  use,  and  when  it  was 
diverted  from  that  use  it  was  to  go  over.  It  is  respectfully 
submitted  that  these  cases  cannot  be  differentiated  so  as  to 
make  a  possibility  of  reverter  in  one  case,  and  not  in  the 
other,  and  that  Brattle  Square  Church  v.  Grant  is  still  law  in 
Massachusetts. 

If  the  Court  in  Brattle  Square  Church  v.  Grant  had  held  the 
law  to  be  as  stated  in  First  Universalist  Society  v.  Boland, 
they  would  have  had  to  rule  that  there  was  a  possibility  of 
reverter,  and  a  void  gift  over,  and  that  the  church  could  not 
make  a  good  title. 

The  only  ground  upon  which  it  can  be  contended  that  there 
is  a  distinction  between  the  two  cases  seems  to  be  this:  It 
may  be  said  that  in  First  Universalist  Society  v.  Boland  the 
society  took  a  determinable  fee,  after  which  there  was  a  pos- 
sibility of  reverter,  and  that  in  Brattle  Square  Church  v.  Grant 
the  church  took  an  absolute  fee  simple  with  an  executory 
devise  cutting  it  short.  But  in  truth  the  language  in  Brattle 
Square  Church  v.  Grant  is  more  favorable  to  the  creation  of 
a  determinable  fee  than  that  in  the  Universalist  Society  v. 
Boland.  In  this  latter  case  land  was  given  to  the  society  to 
hold  so  long  as  it  should  be  devoted  to  the  support  of  certain 
doctrines,  and,  when  it  should  be  diverted  from  said  support, 
the  title  of  the  society  should  cease  and  be  vested  in  certain 
persons.  If  the  words  "so  long  as"  tend  to  show  that  the 
estate  as  originally  limited  was  to  continue  only  so  long  as 
certain  things  were  done,  the  word  "  cease  "  tends  to  show 
that  what  had  been  originally  given  was  to  be  cut  short. 
There  is  no  express  direction  that  the  land  shall  revert.  But 
in  Brattle  Square  Church  v.  Grant  there  was  an  express  direc- 
tion that  the  land  should  "revert,"  and  a  separate  gift  over 


38  THE  RULE  AGAINST  PERPETUITIES. 

in  a  separate  clause.  Further,  the  testator's  nephew,  to  whom 
the  gift  over  was  made,  was  also  the  residuary  devisee,  and  if 
a  possibility  of  reverter  had  been  allowable,  he  would  have 
taken  it  as  such  residuary  devisee,  even  though  the  express 
devise  to  him  was  bad.1  A  distinction  based  on  such  slight 
differences  of  expression  might  have  commended  itself  to  a 
court  in  the  fifteenth  or  sixteenth  century,  but  was  it  wise  so 
to  stick  in  the  bark  at  the  end  of  the  nineteenth? 2 

(3)  Hooker  v.   Utica   Turnpike  Road   Co.3     Here    it  was 
merely  held  that  a  turnpike  company  who  had  abandoned  their 
road  could  not  recover  under  a  penal  statute  for  injuring  it. 

(4)  Leonard  v.  Burr*     Devise  to  A.  of  the  use  of  land 
until  Gloversville  was  incorporated  into  a  village,  and  then 
to  the  trustees  of  said  Gloversville.     The  Court  of  Appeals 
held  that  the  devise  over  to  the  trustees  was  void,  and  that 
A.  took  a  determinable  fee.     The  precise  point  was  passed 
upon,  because  if  A.  took  a  fee  simple  subject  to  a  void  exec- 
utory devise,  he  would  have  an  absolute  estate,  whereas  it 
was  held  that  on  the  incorporation  of  Gloversville  the  land 
reverted  to  the  grantor's  heirs.    It  is  submitted  that  the  de- 
cision was  incorrect,  and  that  in  truth  there  was  a  devise  to 
A.  in  fee,  subject  to  a  bad  executory  devise,  and  that  there- 
fore A.  took  a  fee  simple  absolute.5 

(5)  Gillespie  v.  Broas.*    A  deed  of  land  for  the  use  of  a 
county  as  long  as  the  land  should  be  used  for  a  court-house, 
and  when  it  should  cease  to  be  so  used,  to  revert  to  the  grantor 
and  his  heirs,  was  held  not  to  pass  "a  good  unincumbered 
title."    Here  there  seems  to  have  been  a  determinable  chari- 
table trust,  and  a  resulting  trust.7 

1  Re  Randell,   38  Ch.   D.  213;  on  some  questions,  for  instance,  of 

Blunt's  Trusts,  [1904]  2  Ch.  767;  escheat  or  of  rents? 
Stone  v.  Framingham,   109  Mass.  »  12  Wend.  371. 

303.    See  §  603  i,  post.  *  18  N.  Y.  96. 

1  See  §  41,  post.    The  Court  in-  6  But  see  Lougheed  v.  Dykeman 

timates,  p.  175,  that  the  doctrine  Baptist  Church,   40  N.   Y.   Supp. 

of  tenure   haa  no  significance    in  586. 
this  country.     But  is  this  certain?  •  23  Barb.  370. 

May   it   not   still  have  a  bearing  7  See  (7),  infra. 


FUTURE   INTERESTS.  39 

(6)  State  v.  Brown.1    Here,  as  in  Jamaica  Pond  Aqueduct 
Co.  v.  Chandler,  ante,  a  fee  simple  determinable  is  said  to 
have  been  created;  but  the  only  point  at  issue  was  whether 
there  was  a  fee  at  all. 

(6  a)  Such  was  the  case  also  in  Moulton  v.  Trafton* 
Farnsworth  v.  Perry,3  Weed  v.  Woods,*  and  Chapman  v. 
Cheney,5 

(7)  Foy  v.  Baltimore.6   Land  was  given  to  trustees  for  the 
use  of  the  Roman  Catholics  of  Baltimore,  to  build  a  chapel 
and  lay  out  a  burying-ground;  and  if  the  trustees  did  not 
build  the  chapel  and  use  the  residue  as  a  burying-ground, 
then  the  deed  to  be  void  and  the  premises  to  revert.     The 
land  was  used  as  a  burying-ground,  but  the  chapel  was  built 
on  an  adjoining  parcel.    On  a  petition  to  restrain  the  City  of 
Baltimore  from  selling  the  land  for  taxes,  brought  by  the  priest 
of  the  chapel  and  a  parishioner  who  had  buried  some  of  his 
family  in  the  land,  it  was  held  that  the  petitioners  had  no 
locus  standi,  and  the  majority  of  the  Court  seem  to  place 
their  decision  on  the  ground  that  the  land  had  reverted  to  the 
grantor.7    But  is  not  the  true  view  of  the  case  that  the  trustees 
held  the  land  upon  a  determinable  charitable  trust,  and  then 
when  the  charitable  trust  came  to  an  end,  there  was  a  resulting 
trust  to  the  grantor?  8 

(8)  Conner  v.  Waring.9    Devise  to  A.  for  life,  with  power 
in  A.  to  appoint  among  such  one  or  more  of  the  testator's 
children  or  their  issue  as  A.  might  see  fit.    A.  appointed  a  share 
to  trustees  in  trust  to  permit  L.,  a  daughter  of  the  testator,  to 
take  the  rents  and  profits  during  her  life,  and  after  her  death 
in  trust  that  the  share  should  become  the  estate  of  her  children, 
and  in  case  any  one  of  her  children  should  die  under  age  without 
issue,  its  share  should  go  to  her  surviving  children.    A.  also 

1  3  Dutch.   13.     See   Hoboken          •  191  111.  574. 
Land  Co.  v.  Hoboken,  36  N.  J.  L.  «  4  Gill,  394. 

540,  550.  7  Pp.    405,   406.      See  Reed  v. 

1  64  Me.  218.  Stouffer,  56  Md.  236,  254. 

»  83  Me.  447.  8  See  §§  41  a,  603  i,  post. 

4  71  N.  H.  581.  •  52  Md.  724,  734. 


40  THE  RULE  AGAINST  PERPETUITIES. 

appointed  that  in  case  L.  died  without  having  any  children  or 
descendants  of  children,  her  share  should  go  to  the  testator's 
surviving  children  and  their  representatives.  This  last  ap- 
pointment was  held  in  Torrance  v.  Torrance,1  on  a  like  pro- 
vision under  the  same  will,  to  be  on  an  indefinite  failure  of 
issue,  and  to  be,  therefore,  void  for  remoteness.  L.  died  with- 
out ever  having  had  issue,  and  the  question  arose,  on  a  bill  in 
equity,  as  to  the  disposition  of  her  share.  The  Court  held 
that  her  trustees  took  a  determinable  fee,  that  her  death 
terminated  their  estate,  and  that  the  land  vested,  by  way  of 
reverter,  in  the  heirs  of  the  testator.  The  Court  obviously  fell 
into  the  same  mistake  into  which  Lord  Romilly  had  fallen  in 
Collier  v.  M'Bean,2  which  counsel  could  not  be  found  to 
defend,  and  which  Sir  George  Jessel  had  so  emphatically  con- 
demned in  Collier  v.  Walters.3  It  is  clear  that  the  trustees 
had  a  fee  simple  absolute,  which,  on  the  contingency  that  had 
occurred,  they  held  subject  to  a  resulting  trust  in  favor  of 
the  testator's  heirs.4 

(8  a)  Second  Universalist  Society  v.  Dugan.6  Land  was 
conveyed  to  trustees  for  the  use  of  the  society  of  Christian 
people  called  Quakers  in  Baltimore  to  keep  the  same  for  a 
burying-place,  and  to  build  a  meeting-house,  and  for  no  other 
use,  intent,  or  purpose  whatsoever.  The  Legislature  authorized 
the  trustees  to  sell  the  land.  Held,  that  a  court  of  equity  would 
not  force  on  a  purchaser  a  title  derived  from  the  trustees,  as 
there  might  be  some  reversionary  right  in  the  heirs  of  the 
grantor.6 

(9)  School  Committee  v.  Keskr*  It  was  held  that  deter- 
minable fees  do  not  exist  in  North  Carolina.  Pearson,  C.  J., 
who  delivered  the  opinion  in  this  case,  had  previously  declared 

1  4  Md.  11.  ing  trust  and  not  by  possibility  of 

1  34  Beav.  426.  reverter. 

•  L.  R.  17  Eq.  252.     See  §  37,          •  65  Md.  460. 
ante.  •  Perhaps    they   were    entitled 

4  The   heirs  were   undoubtedly  under  a  resulting  trust.   See  §§41  a, 

entitled,  but  it  was  under  a  result-  327,  603  i,  post. 

1  67  N.  C.  443. 


FUTURE  INTERESTS.  41 

that  an  easement  might  be  made  determinable.1  This  was 
undoubtedly  correct,2  and  was  followed  in  Hall  v.  Turner* 
but  the  Court  in  that  case,  speaking  of  School  Committee  v. 
Kesler,  say:4  "However  broad  may  be  the  language  quoted, 
we  have  no  idea  that  it  was  the  purpose  of  the  Chief  Justice  to 
say  that  the  limitation  expressly  defined  by  him  as  a  base  or 
qualified  fee  in  Merriman's  Case  could  not  be  made  hi  North 
Carolina.  Such  limitations  are  not  infrequent  in  this  and 
other  States  (2  Wash.  R.  P.  4),  and  we  are  not  prepared  to 
adopt  a  view  which  leads  to  such  a  revolution  in  the  law  of 
limitations  of  real  property."  And  this  passage  has  since  been 
quoted,  seemingly  with  approval.5 

(9  a)  Carr  v.  Georgia  Railroad.6  Land  was  conveyed  to 
a  railroad  company  by  a  deed  containing  the  express  stipulation 
that  when  the  company  ceased  to  use  the  land  for  a  station, 
"this  deed  shall  cease,  determine  and  be  void,  and  of  no  effect 
whatever,  neither  in  law  nor  in  equity,  and  the  land,  with  all 
the  rights,  privileges,  and  appurtenances,  shall  revert  to  the 
donor  or  his  heirs."  It  was  held  that  the  deed  created  a  de- 
terminable fee,  and  that  upon  the  railroad  ceasing  to  use  the 
land  for  a  station  it  reverted  without  entry.7 

(9  6)  Young  v.  Mahoning  County.*  Y.  conveyed  land  to 
an  incorporated  village.  Afterwards  he  brought  an  action  at 
law  against  the  village  in  the  United  States  Circuit  Court  for 
the  Northern  District  of  Ohio  to  recover  the  land.  The  Court 
considered  that  a  reference  in  the  deed  of  the  plaintiff  to  a 
statute  had  the  effect  of  making  the  deed  read  as  a  con- 

1  Meniman  v.  Russell,  2  Jones      road.    The  Court  thought  the  deed 

Eq.  470.  created    a    determinable    fee,    but 

1  See  §  279,  post.  said  it  was  immaterial  whether  it 

1  110  N.  C.  292.  created  a  determinable  fee  or  a  fee 

4  P.  306.  on  condition  subsequent.    And  see 

5  Keith    v.   Scales,  124   N.   C.      Jackson  v.  Dougherty  County,  99 
497,  514.  Ga.  185. 

•  74  Ga.  73.  8  51  Fed.  Rep.  585;  in  error  sub 

7  In  Macon  v.  East  Tennessee,  nom.  Mahoning  County  v.  Young, 

Ac.  R.  Co.,  82  Ga.  501,  there  was  a  59  Fed.  Rep.  96. 

somewhat  similar  grant  to  a  rail- 


42  THE  RULE  AGAINST  PERPETUITIES. 

veyance  of  the  land  for  the  purpose  of  its  being  used  as  a 
burying-ground.  The  land  had  ceased  to  be  used  as  burying- 
ground.  The  Court  held  that  the  deed  created  a  determinable 
fee,  which  had  come  to  an  end,  and  that  the  plaintiff  was 
entitled  to  recover.  But  the  Circuit  Court  of  Appeals,  on  a 
writ  of  error,  was  of  opinion  that  the  village  took  a  fee  simple 
absolute,  subject  to  a  trust,  and  reversed  the  judgment. 

(10)  Daniels  v.  Wilson.1    Land  in  a  village  was  conveyed 
to  a  county  by  a  deed,  with  a  proviso  that  the  land  was  sold 
for  county  purposes  so  long  as  the  county-seat  remained  in  the 
village;  and  if  at  any  time  the  county-seat  was  removed  there- 
from, "then  this  conveyance  to  be  void  and  of  no  effect,  and 
the  land  reverts  to  the"  grantors.    It  was  held,  or  rather 
assumed  without  contention,  that  this  provision  was   good, 
but  whether  as  a  condition  or  a  limitation  is  not  clear.    The 
counsel  for  the  grantor  treat  it  as  the  former.2 

(11)  Daniel    v.    Jackoway.3     Land    was    conveyed    to    a 
county  board  for  the  use  and  benefit  of  the  county,  for  a 
county  site  for  a  court-house.    The  Superior  Court  of  Chan- 
cery of  Mississippi  held  that  when  the  land  ceased  to  be  used 
for  a  court-house,  there  was  a  resulting  trust  to  the  grantor, 
and  ordered  a  reconveyance.    The  grantor  was  not  held  to  have 
any  legal  interest.    This  was  clearly  correct.4 

(11  o)  McBride  v.  Farmers'  Gin  Co.5  Land  was  conveyed 
to  G.,  his  heirs  and  assigns  to  hold  "as  long  as  said  premises  or 
pools  situated  on  said  premises  are  used  for  the  purpose  and 
use  of  the  gin  and  mill  attached,"  which  was  on  adjoining  land. 
It  was  held  by  the  Court  of  Civil  Appeals  of  Texas  that  when 
the  use  aforesaid  ceased,  an  assignee  of  the  grantor  was 
entitled  to  the  premises  conveyed. 

1  27  Wis.  492.  University,  17  Wash.  160,  it  is  not 

1  See  p.  494.  clear  whether  the  Court  thought 

1  Freem.  Ch.  (Miss.)  59.  there  was  a  right  to  enter  for  con- 

4  See  §§  41  o,  327,  603  i,  post.  dit  ion  broken,  or  a  possibility  of 

Cf.  Memphis  &  Charleston  R.  R.  reverter  or  a  resulting  trust;  what- 

Co.   v.   Neighbors,   51   Miss.   412,  ever  it  was,  it  was  held  good. 

418;    Hopkins   v.    Grimshaw,    165  •  152  S.  W.  Rep.  1135. 

U.  8.  342.    In  Jenkins  v.  Jenkins 


FUTURE   INTERESTS.  43 

§  40  a.  Since  the  second  edition  of  this  book  three  cases 
have  held,  following  the  dictum  in  First  Universalist  Society  v. 
Boland,  that  a  possibility  of  reverter  exists  after  a  termin- 
able gift  for  a  charity.  The  first  is  in  Illinois,  North  v. 
Graham.1  The  Court  says:  "An  estate  of  this  nature  has  so 
frequently  been  upheld  by  this  Court  that  it  must  be  held 
to  be  recognized  as  the  settled  law  in  this  State  "  ;  but  the 
Illinois  cases  referred  to  by  the  Court  were  not  cases  of 
determinable  fees  at  all,  but  were  the  ordinary  cases  of 
devises  in  fee  simple  with  executory  devises  over.2  The 
second  case  is  in  Maine,  Pond  v.  Douglass.3  The  third  case, 
Board  of  Chosen  Freeholders  v.  Buckf  is  a  decision  of  Learning, 
V.  C.,  in  New  Jersey. 

§  41.  The  question  naturally  arises:  Why  inquire  so  curi- 
ously as  to  the  validity  of  a  common-law  possibility  of  reverter, 
since  by  a  shifting  use  or  an  executory  devise  to  the  grantor 
the  same  result  can  be  reached?  The  answer  is:  Shifting  uses 
and  executory  devices  are,  past  a  doubt,  subject  to  the  Rule 
against  Perpetuities;  but  possibilities  of  reverter  are  not. 
It  was  expressly  said  in  First  Universalist  Society  v.  Boland 
that  they  are  not;  and  this  seems  to  be  the  almost  necessary 
consequence  of  allowing  determinable  fees.5  Therefore,  if 
determinable  fees  are  valid,  interests  can,  by  means  of  them, 
be  created  in  a  grantor  and  his  heirs  and  assigns,  which  may 
not  come  into  possession  for  centuries.  It  is  submitted  that 

1  235  111.  178;    and  see  Dees  v.  not   have  a   conditional   limitation 
Cheuvronts,  240  111.  486.  after  a  conveyance  in  fee  by  deed. 

2  In   Morton    v.  Babb,  251   111.  But  this  doctrine  is  peculiar  to  Illi- 
488,  land  was  conveyed  by  deed  to  nois,  and  it  is  not  likely  that  the 
A.  and  his  heirs,  but    if   he   died  case  will  be  followed  elsewhere, 
without  issue,   the  premises  to  re-  3  106  Me.  85.    Cf.  the  dicta  in 
vert  to  the  grantor  and  his  heirs.  Kasey  v.  Fidelity  Trust  Co.,   131 
The  Court  seems  to  have  thought  Ky.    609,    623,    and    Patterson   v. 
that  a  definite  failure  of  issue  was  Patterson,     135    Ky.    339,     cases 
meant ;  and  it  held  that  A.  took  a  under  the  Kentucky  Statute.     See 
determinable  fee.      This  seems    to  §  737,  post. 

have  been  done  to  avoid  the  appli-  4  79  N.  J.  Eq.  472. 

cation  of  the  doctrine  that  you  can-  6  See  §  312,  post. 


44  THE  RULE  AGAINST  PERPETUITIES. 

theory  and  policy  alike  agree  in  denying  the  existence  at  the 
present  day  of  possibilities  of  reverter.1 

§  41  a.  In  the  matter  of  possibilities  of  reverter  a  distinc- 
tion can  be  taken  which  is  possibly  sound.  Property  may  be 
given  to  trustees  for  temporary  charitable  purposes,  and 
when  those  purposes  have  been  accomplished,  there  is  a  valid 
resulting  trust  to  the  grantor.  This  doctrine,  however  objec- 
tionable, seems  to  be  established.2  Between  allowing  a  result- 
ing trust  on  the  accomplishment  of  a  charitable  purpose,  and 
allowing  the  estate  of  the  trustee  to  determine  of  itself  upon 
the  accomplishment  of  that  purpose,  the  practical  distinction 
is  small,  and  it  may  be  argued  that  if  the  former  be  allowed, 
so  also  should  be  the  latter.  Should  this  argument  be  yielded 
to,  possibilities  of  reverter  might  be  allowed  where  the  first 
estate  was  for  a  charitable  purpose  (and  it  would  seem  im- 
material whether  the  estate  had  been  acquired  by  sale  or  gift). 
This  result  if  accepted  would  explain  and  justify  First  Uni- 
versalist  Society  v.  Boland  and  several  of  the  other  American 
cases  mentioned  above,  but  it  could  not  be  invoked  in  favor 
of  Leonard  v.  Burr  or  Carr  v.  Georgia  Railroad.3 

§  42.  In  several  of  the  Western  States,  statutes  have  been 
enacted  for  the  dedication  of  streets,  which  the  courts  con- 
sider as  providing  for  the  passage  of  the  fee.  In  Illinois  it 
has  been  held  under  such  a  statute  that  when  the  street  is 
disused  the  land  reverts  to  the  grantor.4 

1  See  the  matter  of  determin-  I1L  411.  The  matter  is  fully  dis- 
able fees  further  discussed  in  App.  cussed  in  Kales,  Fut.  Int.  in  111. 
E,  §  774  et  seq.,  post;  1  Tiffany,  §§  2-13;  1  111.  Law  Rev.  312.  See 
Real  Prop.  §  81;  and  by  Mr.  J.  M.  Board  of  Education  v.  Edson,  18 
Zane,  17  Harv.  Law  Rev.  297.  See  Ohio  St.  221;  Thayer  v.  McGee, 
also  §  115  a,  post.  20  Mich.  195;  Patterson  v.  Patter- 

1  §  603  i,  post.  son,    135    Ky.    339;     Lithgow   ». 

1  On  the  alleged  right  of  the  Pearson,  25  Color.  Ap.  70.  Con- 
donor  of  land  to  a  corporation  upon  Ira,  Pettingill  v.  Devin,  35  Iowa, 
the  dissolution  of  the  corporation,  344;  Day  v.  Schroeder,  46  Iowa, 
see  §§  44  et  seq.,  post.  546.  Under  a  common-law  dedi- 

4  Gebhardt  v.  Reeves,  75  111.  301.  cation  only  a  right  in  the  nature 

Helm  v.  Webster,  85  111.  116.  Mat-  of  an  easement  is  created.  The 

thiessen  Zinc  Co.  v.  La  Salle,  117  fee  remains  in  the  dedicator,  and  if 


FUTURE  INTERESTS.  45 

§  42  a.  Curtesy  and  Dower.  —  The  Statute  Quia  Emptores 
affected  curtesy  only  indirectly  by  affecting  the  tenure  of  the 
wife.  The  tenant  by  the  curtesy  held  of  the  lord  of  whom 
his  wife  had  held.  The  Statute  did  not  affect  dower  at  all, 
for  the  tenant  in  dower  held  of  the  heir. 

§  43.  Rights  less  than  Ownership  in  Land  of  others.  —  Such 
rights  are  not  the  subjects  of  tenure; x  consequently  the  Statute 
Quia  Emptores  has  no  application  to  them. 

§  44.  Escheat.  —  The  effect  of  the  Statute  Quia  Emptores 
on  the  right  of  escheat  was,  of  course,  to  give  that  right  to  the 
grantor's  lord.  It  is  said  by  Lord  Coke 2  that  "if  land  holden 
of  I.  S.  be  given  to  an  abbot  and  his  successors,  in  this  case 
if  the  abbot  and  all  the  convent  die,  so  that  the  body  politique 
is  dissolved,  the  donor  shall  have  againe  this  land,  and  not 
the  lord  by  escheat.  And  so  if  land  be  given  in  fee  simple  to 
a  deane  and  chapter,  or  to  a  mayor  and  commonalty,  and 
to  their  successors,  and  after  such  body  politique  or  incorporate 
is  dissolved,  the  donor  shall  have  again  the  land,  and  not  the 
lord  by  escheate."  This  statement  has  been  often  repeated  as 
law,  and  has  proved  a  sore  stumbling-block  to  courts  and 
writers  in  this  country.  Being  unwilling  to  follow  it,  they  have 

the  public  use  comes  to  an  end,  the          1  27  Hen.  VIII.  10,  pi.  23.    Bro. 

fee  stays  as  it  is,  the  incumbrance  Ab.   Escheate,   9,   22.     A.   G.   v. 

being  removed.     On  determinable  Sands,  Hardres,  488,  496.    3  Inst. 

interests  under  the  United  States  19,   21.     Co.   Lit.   298  a,   Butler's 

mining   laws,   see   17   Harv.   Law  note  (2).     Wms.  Real   Prop.  (22d 

Rev.  301.    The  Supreme  Court  of  ed.)  448.    See  Dean  &  Canons  of 

the  United  States  has  held  that  Winsor  v.  Webb,  Godb.  211.    The 

such  interests  are  incorporeal  and  term  "tenement,"  though  it  strictly 

not   corporeal   hereditaments,   and  means  "that  which  is  holden,"  is 

that  therefore  there  is  no  right  of  often   extended   loosely   so   as   to 

dower  in  them.     Black  v.  Elkhorn  cover    incorporeal    hereditaments. 

Mining  Co.,   163   U.  S.  445.      In  Co.  Lit.  6  a.    2  Bl.  Com.  16,  17. 

Gome  of  the  States,  statutes  abol-  Shep.  Touch.  91.    1  Prest.  Est.  8- 

ishing  estates  tail  (see  §  19,  note,  10.     Williams   on   Commons,    30. 

ante)  have  been  held  to  create  what  Rex  v.  Skingle,  1  Stra.  100.    King 

are  called  determinable  fees.    See  v.  Hollington,  3  East,  113.    Challis, 

the   interesting  treatment  of   this  Real  Prop.  (3d  ed.)  42,  43. 
subject   by  Mr.  Zane,    17   Harv.          »  Co.  Lit.  13  b. 
Law  Rev.  305  et  seq. 


46  THE  BULB  AGAINST  PERPETUITIES. 

been  constrained  to  call  it  "obsolete."  1  Let  us  examine  the 
authorities  cited  by  Lord  Coke  for  his  assertion.  They  are 
(a)  17  Edw.  II.  St.  3;  (6)  9Edw.  III.  26;  (c)  7  Edw.  IV.  11,  12. 
F.  N.  B.  33,  cited  by  Lord  Coke,  contains  nothing  in  point. 

§  45.  (a)  17  Edw.  II.  St.  3,  De  Terns  Templariorum  (1324). 
This  Statute  recites  that  lands  of  the  Templars  which  were 
holden  of  the  King  and  divers  other  lords  were,  upon  the 
dissolution  of  the  order,  "seised  into  the  Hands  of  our  Sov- 
eraigne  Lord  the  King,  and  of  divers  other  Lords  of  the  Fees 
of  them,  who  challenged  the  same  Lands  for  the  Consideration 
aforesaid,  that  the  same  Lands  ought  to  revert  to  them  as  their 
Escheats."  It  then  enacted  that  the  lands  should  be  given 
to  the  order  of  the  Hospital  of  St.  John  of  Jerusalem,  to  hold 
of  the  King  and  other  Lords  of  the  Fees  by  the  same  services 
as  the  Templars  held  them.  There  is  nothing  here  to  indicate 
that  the  lords  claimed  as  donors;  on  the  contrary,  it  is  expressly 
said  that  they  claimed  by  escheat,  because  the  lands  were 
holden  of  them. 

§46.  (6)  9  Edw.  III.  25,  26  (1335).  This  is  the  case  of 
The  King  v.  The  Prior  of  the  Hospital  of  St.  John.  The  ad- 
vowson  of  the  church  of  Sanford  was  in  the  Master  of  the 
Temple,  and  after  the  lands  and  tenements  of  the  Templars 
had  been  seised  into  the  hands  of  the  King  and  the  other 
lords,  the  church  became  void.  The  question  was  whether 
the  King  had  the  right  to  present  on  this  vacancy,  or  whether 
it  had  passed  to  the  Prior  of  the  Hospital  by  the  grant  in  the 
above  Statute  of  all  the  lands  of  the  Templars.  Shardelowe, 
J.,  said:  "There  is  no  doubt  in  law  but  that  by  reason  of  the 
dissolution  of  the  order  their  possession  was  escheat  to  the 
King,  and  in  the  same  manner  to  all  the  other  Lords  that 
which  was  held  of  them,  so  that  the  estate  that  the  Prior  had 
in  the  advowson  is  of  the  King's  grant.  Wherefore,  after 
he  has  parted  by  his  deed  with  his  right  of  advowson,  the 
presentation  cannot  remain  to  him."  A  distinct  statement 

1  Owen  v.  Smith,  31  Barb.  641.      Folger  v.  Chase,  18  Pick.  63,  66. 
2  Kent,  Com.  307,  note  (6).    See 


FUTURE  INTERESTS.  47 

that  the  lands  passed  by  escheat  to  the  lords  of  whom  they  were 
held.  Not  a  word  of  their  passing  to  the  donors  as  distinct 
from  the  lords.1 

§  47.  (c)  7  Edw.  IV.  10-12  (1467).  The  Prior  of  Spald- 
ing's  Case.  Trespass  by  the  Prior  for  taking  an  estray  in  the 
Manor  of  Spalding.  The  Manor  of  Spalding  was  held  by  the 
Prior  in  frankalmoign  of  John  of  Gaunt  as  lord  of  the  Honour 
of  Bolingbroke.  The  King  in  Parliament  granted  to  John 
of  Gaunt  the  estrays  infra  omnia  feoda  sua.  The  Honour  of 
Bolingbroke  was  forfeited  by  Act  of  Parliament  to  the  King, 
and  the  defendant,  as  the  King's  bailiff,  took  an  estray  in  the 
Manor  of  Spalding.  The  question  at  issue  was  whether  land 
held  of  John  of  Gaunt  in  frankalmoign  could  be  properly  said 
to  be  infra  feoda  sua,  within  his  fee.  The  counsel  for  the 
plaintiff  contended  that,  as  no  services  were  rendered  by 
tenant  in  frankalmoign,  the  land  could  not  be  said  to  be  within 
the  lord's  fee.  The  judges  were  of  a  contrary  opinion.  It 
should  be  remembered  that  land  in  frankalmoign  can  be  held 
only  of  the  donor,  and  therefore,  after  the  Statute  Quia  Emp- 
tores,  estates  in  frankalmoign  could  be  created  only  by  the 
King.2  So  in  frankalmoign  lands  the  donor  and  the  lord  must 
be  the  same.  Thus  Fairfax,  arguendo  in  this  case:  "If  all 
the  monks  and  the  abbot  or  prior  of  such  a  house  die,  the 
donor  shall  have  the  land  by  way  of  escheat,  so  he  is  lord,  and 
the  land  within  his  fee."  Therefore  in  a  case  of  frankalmoign 
the  words  "donor"  and  "lord"  are  interchangeable.  The  only 
thing  in  this  case  that  makes  for  Lord  Coke's  proposition  is 
a  remark  of  Choke,  J.:  "As  to  what  has  been  said,  that  if  the 
abbot  and  all  his  monks  die  the  donor  can  enter,  it  seems  to 
me  that  he  well  may:  for  if  the  gift  was  to  the  abbot  and  his 
successors,  then  when  the  succession  fails,  the  gift  is  deter- 
mined, for  the  gift  depends  wholly  on  the  succession.  As  if 

1  See    Littleton,     arguendo,     in  *  Lit.  '§§  140,  141.    F.  N.  B.  210 

Bishop  of   Winchester  v.  Prior  of      et  seq. 
St.  John  of  Jerusalem,  35  Hen.  VI. 
56,57. 


48  THE  BULB  AGAINST  PERPETUITIES. 

I  give  land  to  a  man  to  have  to  him  and  his  heirs  in  fee  so 
long  as  John  A'Down  has  issue  of  his  body,  in  that  case  the 
feoffee  will  hold  of  his  lord,  etc.,  yet  if  John  A'Down  dies  with- 
out heir  of  his  body,  etc.,  in  that  case  I  may  well  enter;  etc. 
But  not  by  escheat,  etc.,  but  because  the  feoffment  is  deter- 
mined, etc. ;  so  here  when  the  succession  fails,  the  gift  is  deter- 
mined, etc.,  and  therefore  the  donor  may  well  enter,  etc." 
Danby,  C.  J. :  "  It  seems  to  me  that  this  cannot  be,  for  notwith- 
standing they  die,  yet  others  can  be  made,  etc."  This  dictum 
of  Mr.  Justice  Choke  certainly  supports  the  statement  of 
Lord  Coke.  It  must  be  borne  in  mind,  however,  that  it  was 
made  in  a  discussion  on  frankalmoign  tenure,  where  the  donor 
and  the  lord  must  be  the  same  person,  and  that  the  statement 
of  Choke,  J.,  that  if  land  is  to  be  held  so  long  as  John  A'Down 
has  heirs  of  his  body,  there  is  a  possibility  of  reverter,  which  is 
the  basis  of  Choke,  J.'s  proposition,  is  probably  not  law.1 

§  48.  In  early  times  conveyances  to  corporations  were  gen- 
erally gifts  to  ecclesiastical  corporations,  and  gifts  to  ecclesi- 
astical corporations  were  usually  in  frankalmoign.2  Upon  the 
dissolution  of  a  corporation,  land  held  by  it  in  frankalmoign 
escheated  to  the  donor,  for  the  donor  was  the  lord.  Hence,  one 
may  suspect,  arose  the  notion  that  on  the  dissolution  of  any 
corporation  all  its  land  came  back  to  the  donor,  the  fact  being 
that  what  made  this  true  in  case  of  land  held  in  frankalmoign 
did  not  apply  to  land  held  on  other  tenures  by  corporations.  At 
any  rate,  the  dictum  of  Choke,  J.,  supra,  is  the  only  one  of  the 
authorities  cited  by  Lord  Coke  which  supports  his  statement. 

§  49.  Before  the  publication  of  Lord  Coke's  First  Institute, 
1628,  he  and  two  of  his  fellows  of  the  Common  Bench  had  said 
in  Dean  and  Canons  of  Winsor  v.  Webb  3  (1613):  "That  if  a 
man  give  lands  unto  Dean  and  Canons,  and  to  their  successors, 

1  See  §§  31-41,  ante;  App.  E,  7.  "Stipulations  for  definite 
§§  774  et  seq.,  post.  Cf.  11  Edw.  spiritual  services  were  very  rare 
IV.  4,  pi.  7;  12  Edw.  IV.  3  o,  4  a,  when  compared  with  gifts  in  frank- 
pi.  7.  almoign."  1  P.  &  M.  (2d  ed.)  Hist. 

1  Third    Report    of    Commis-  Eng.  Law,  241. 
sionere  on  the  Law  of  Real  Property          3  Godb.  211. 


FUTURE   INTERESTS.  49 

and  they  be  dissolved;  or  unto  any  other  corporations;  that  the 
donor  shall  have  back  the  lands  again,  for  the  same  is  a  con- 
dition in  law  annexed  to  the  gift;  and  in  such  case  no  writ 
of  escheat  lieth,  yet  the  land  is  in  him  in  the  nature  of  an 
escheat."  The  remark  does  not  seem  to  have  been  called  for  by 
the  decision  of  the  case,  which  was  a  prohibition  to  an  Eccle- 
siastical Court  to  entertain  a  suit  by  a  parson  to  recover  the 
treble  value  of  tithes.  Moore,  282,  283,  pi.  435,1  is  merely 
an  opinion  of  Serjeants  Moore  and  Brograve  (1590)  that  the 
suppression  of  a  monastery  gave  a  right  of  entry  to  the  founders, 
and  that  the  King  should  be  understood  founder  if  no  other 
was  found.  It  was  not  known  of  whom  or  on  what  tenure  the 
land  was  held.  The  King  would  clearly  have  been  entitled 
by  escheat.2 

§  50.  But  the  notions  which  Lord  Coke  imposed  upon  his 
brethren  did  not  always  long  survive  his  retirement.  In 
Johnson  v.  Norway  3  (1622)  arose  the  precise  question  whether, 
on  the  dissolution  of  a  corporation,  its  land  went  to  the  donor 
or  escheated  to  the  lord.  Hobart,  C.  J.,  said:  "The  great 
doubt  of  the  case  will  be  upon  the  barre  of  the  defendant, 
whether  by  the  death  of  the  abbot  and  the  monks,  the  land 
escheat  to  the  lords  of  whom  that  was  holden,  or  whether  that 
shall  go  to  the  donors,  and  to  the  founders,  and  he  thought 
that  the  land  shall  escheat,  to  which  Winch  seemed  to  agree." 
The  report  adds  that  the  judges  said  they  would  advise  of  the 
case,  and  gave  order  to  argue  it  again;  but  Lord  Hale's  MSS.4 
say  that  it  was  held  that  the  land  escheated.  This  is  the  only 
English  case  in  which  the  question  has  been  decided. 

§  51.  But  although  Lord  Coke's  doctrine  rests  solely  on  a 
dictum  of  a  judge  in  the  fifteenth  century,  and  is  contrary  to 
the  only  English  case,  it  has  often  been  referred  to  as  law.5 

1  Cited  in  Harg.  note  to  Co.  *  Cited  Co.  Lit.  13  b,  Harg. 
Lit.  13  6.  note. 

«  See  Southwell  v.  Wade,  1  Roll.  6  Per  Lord  Hardwicke  in  A.  G. 

Ab.  816,  A,  pi.  1.  v.  Gower,  9  Mod.  224,  226.  Per 

1  Winch,  37.  Lord  Mansfield  in  Burgess  v. 

Wheate,  1  W.  Bl.  123,  165.  Per 


50 


THE   RULE  AGAINST  PERPETUITIES. 


But  only  one  decision,  however,  has  ever  followed  it,  and  it 
is  probably  among  those  decantata  which  when  carefully  ex- 
amined will  be  found  not  only  "obsolete  and  odious,"  but  in 
fact  to  have  never  been  law  at  all.1  The  alleged  right  of  the 
donor  is  sometimes  spoken  of  as  a  possibility  of  reverter,  but 
this  it  cannot  be,  for  if  it  were,  a  corporation  could  never  make 
a  good  title  to  its  land.2  If  the  right  exists  at  all,  it  must  be  a 
right  in  the  nature  of  escheat.  The  case  of  Hastings  Corpora- 
tion v.  Letton 3  calls  for  notice  in  this  connection.  It  was  a  suit 
by  a  lessor  against  a  surety  for  the  rent.  The  lessee  was  a  cor- 
poration. The  corporation  (and  also  a  corporation  to  which  the 
lease  had  been  assigned)  had  been  dissolved.  The  question  was 
whether  the  lease  had  determined;  if  it  had,  then  the  liability 
of  the  surety  was  at  end;  if  it  had  not,  the  lease  had  passed 
to  the  Crown  as  bona  vacantia,  and  the  surety  was  still  held. 


Lord  Denman  in  Mayor  of  Col- 
chester v.  Brooke,  7  Q.  B.  339,  384. 
Folger  v.  Chase,  18  Pick.  63,  66. 
Bingham  v.  Weiderwax,  1  Comst. 
509.  Nicoll  v.  N.  Y.  &  Erie  R.  R. 
Co.,  12  Barb.  460,  465;  12  N.  Y. 
121,  129,  130.  Robie  v.  Sedgwick, 
35  Barb.  319,  329.  Commercial 
Bank  v.  Lockwood,  2  Hairing.  8, 
13.  Fox  v.  Horah,  1  Ired.  Eq.  358, 
361.  State  v.  Rives,  5  Ired.  297, 
309.  Life  Assoc.  v.  Fassett,  102 
111.  315.  Coulter  v.  Robertson,  24 
Miss.  278,  321.  See  Bacon  v.  Rob- 
ertson, 18  How.  480,  483,  487;  Mor- 
mon Church  v.  U.  S.,  136  U.  S.  1, 
47;  Owen  v.  Smith,  31  Barb.  641; 
People  t;.  Mauran,  5  Denio,  389, 
401;  Woodworth  v.  Payne,  5  Hun, 
551,  553;  74  N.  Y.  196,  201;  A.  G. 
v.  Clergy  Society,  10  Rich.  Eq.  604, 
610;  St.  Philip's  Church  v.  Zion 
Church,  23  So.  Car.  297,  298-303, 
314;  Moultrie  v.  Smiley,  16  Ga. 
289,  298,  299;  Davis  v.  Memphis  & 
Charleston  R.  R.  Co.,  87  Ala.  633, 


637;  State  Bank  v.  State,  1  Blackf. 
267,  282;  McRoberts  v.  Moudy,  19 
Mo.  Ap.  26;  Murray  v.  Green,  64 
Cal.  363,  367.  But  cf.  Gibson  v. 
Armstrong,  7  B.  Mon.  481,  489, 
490;  People  v.  College  of  California, 
38  Cal.  166;  1  Bl.  Com.  484;  2 
Prest.  Est.  50;  1  Prest.  Abs.  272; 
Shep.  Touch.  (Prest.  ed.),  p.  30; 
2  Kent,  Com.  307;  Challis,  Real 
Prop.  (3d  ed.)  35. 

1  The  result  reached  in  the  text 
has  been  approved  by  Mr.  Sweet 
in  his  note  to  Challis,  Real  Prop. 
(3d  ed.)  467.  See  also  Richards  v. 
Coal  Co.,  221  Mo.  149,  171;  and 
cf.  McAlhany  t;.  Murray,  89  So. 
Car.  440.  But  cf.  the  remarks  of 
Professor  Williston,  2  Harv.  Law 
Rev.  163,  164;  and  10  Mich.  Law 
Rev.  121. 

1  See  Mr.  Sweet's  note,  loc. 
cit.,  where  he  comments  on  Pres- 
ton's remarks. 

•  [1908]  1  K.  B.  378. 


FUTURE   INTERESTS.  51 

If  the  lease  had  determined,  as  the  Court  held  it  had,  there  was 
no  question  of  where  the  title  to  the  land  should  go,  the  title 
continued  in  the  lessor  who  had  been  always  seised  in  fee. 
The  doctrine  of  Lord  Coke  was  referred  to  by  the  Court  with 
approval.  But  in  truth  it  had  no  bearing  on  the  question  in- 
volved. If  a  fee  simple  is  granted  to  a  corporation,  and  the 
corporation  is  dissolved,  the  estate  in  fee  of  the  corporation  is 
at  end.  And  the  question  arising  is  who  has  the  right  of  escheat 
or  in  the  nature  of  escheat,  a  question  which  did  not  and  could 
not  arise  in  Hastings  Corporation  v.  Letton. 

§  51  a.  The  only  case  which  has  been  decided  in  accord- 
ance with  Lord  Coke's  remark  is  Mott  v.  Danville  Seminary.1 
Melissa  B.  Lamon  gave  a  parcel  of  land  to  the  Board  of  Trus- 
tees of  the  Danville  Seminary,  a  body  incorporated  under  a 
general  statute.  The  gift  was  "for  the  building  and  main- 
taining on  said  grounds  an  institution  of  learning,  as  provided 
by  said  law  authorizing  said  incorporation."  The  corporation 
was  dissolved  by  decree.  The  Supreme  Court  of  Illinois  held 
that  the  title  thereupon  vested  in  the  donor  without  entry. 
This  case,  as  a  decision,  as  yet  stands  alone.2 

4.   Statutes  of  Uses  and  of  Wills. 

§  52.  The  next  change  in  the  law  of  future  estates  was 
worked  by  the  Statute  of  Uses,  27  Hen.  VIII.  c.  10  (1535). 
This  Statute  enacted  that  when  anyone  was  seised  to  the  use 
of  another,  such  other  should  be  seised  of  the  same  estate  of 
which  he  had  the  use.  Uses  in  equity  could  be  created  by 
parol  without  livery  of  seisin,  and  there  was  no  restraint  on 
their  creation  in  futuro.  When,  therefore,  by  means  of  the 
Statute  of  Uses,  the  legal  estate  was  united  to  the  use,  it 
became  possible  to  create  freeholds  without  livery  of  seisin, 
and  commencing  in  futuro. 

1  129  111.  403;  136  111.  289.  Jenkins  University,  17  Wash.  160; 

*  See    Presbyterian   Church  v.  2  111.  Law  Rev.    196;  Kales,  Fut. 

Venable,    159   111.   215;   Miller  v.  Int.  in  111.  §  126. 

Riddle,    227    111.    53;    Jenkins  v. 


52  THE  RULE  AGAINST  PERPETUITIES. 

§  53.  Uses  could  be  devised  in  equity,  but  when  the  legal 
estates  were  joined  to  them,  they  ceased  to  be  devisable  until 
St.  32  Hen.  VIII.  c.  1  (1540),  which  permitted  devises  of 
land.  As  devises  were  good  without  livery,  so  they  too  could 
be  made  to  take  effect  in  future. 

§  54.  When  a  use  or  devise  takes  effect  on  the  determina- 
tion of  preceding  estates  created  at  the  same  time,  it  is  a 
remainder  limited  by  way  of  use  or  devise. 

When  a  use  cuts  short  another  granted  estate,  it  is  called  a 
shifting  use. 

When  it  cuts  short  the  estate  of  the  person  creating  it,  it  is 
called  a  springing  use. 

Devises  are  not  distinguished  into  springing  and  shifting. 
All  future  devises  which  are  not  remainders  are  called  execu- 
tory devises. 

Conditional  limitation  is  a  common  term  for  a  shifting  use 
and  a  shifting  executory  devise.1 

§  55.  Apart  from  the  Rule  against  Perpetuities,  there  are  no 
restraints  on  the  creation  of  shifting  and  springing  uses  and 
executory  devises  in  futuro.  Only  three  exceptions  to  this 
have  ever  been  suggested:  (1)  that  a  future  freehold  cannot 
be  raised  by  a  bargain  and  sale;  (2)  that  a  contingent  use  is 
bad  if  preceded  by  an  estate  for  years;  (3)  that  a  bargain 
and  sale  cannot  be  to  a  person  not  in  esse.  The  validity  of 
these  three  supposed  exceptions  will  now  be  examined. 

§  56.  (1)  Can  a  Future  Freehold  be  raised  by  a  Bargain 
and  Sale?  —  There  is  no  doubt  that  a  feoffment  may  be  made 
to  a  future  use,  or  that  a  man  may  covenant  to  stand  seised  to 
a  future  use;  and  it  would  seem  equally  clear  on  principle 
that  a  man  may  by  bargain  and  sale  create  an  estate  to  begin 
in  futuro.  In  a  bargain  and  sale,  as  in  a  covenant  to  stand 
seised,  the  owner  of  the  land  stands  seised  to  his  own  use 
until  the  time  named  in  the  bargain  or  covenant,  and  then 
the  use  shifts;  the  use  in  both  cases  arises  out  of  the  seisin 

1  For  another  meaning  of  con-  straints  on  Alienation  (2d  ed.)» 
ditional  limitation,  see  Gray,  Re-  §  22,  note. 


FUTURE   INTERESTS.  53 

of  the  owner;  there  is  no  difference  in  the  two  except  in  the 
character  of  the  consideration. 

§  57.  In  Massachusetts  it  was  early  held,  by  a  singular 
error,  that  while  a  future  estate  could  be  raised  by  a  covenant 
to  stand  seised,  it  could  not  be  raised  by  a  bargain  and  sale. 
"The  conveyance,  being  in  effect  a  bargain  and  sale,  must  have 
all  the  other  requisites  and  qualities  of  a  bargain  and  sale. 
One  of  these  qualities  is,  that  it  must  be  to  the  use  of  the 
bargainee,  and  that  another  use  cannot  be  limited  on  that 
use;  from  which  it  follows,  that  a  freehold  to  commence  in 
futuro  cannot  be  conveyed  in  this  mode;  as  that  would  be  to 
make  the  bargainee  hold  to  the  use  of  another,  until  the  future 
freehold  should  vest."  l  The  fallacy  is  obvious;  it  lies  in  assum- 
ing that  the  use  to  the  bargainee  arises  immediately  upon  the 
bargain  and  sale;  that,  under  the  Statute,  the  legal  estate  vests 
immediately  in  him;  and  that  the  interest  of  the  bargainer,  until 
the  future  event  happens,  must  arise  out  of  that  legal  estate 
of  the  bargainee.  Whereas,  hi  fact,  the  use  does  not  arise  until 
the  future  event,  and  in  the  meantime  the  bargainer  retains 
his  original  estate.  It  is  surprising  that  the  learned  Court 
did  not  perceive  that  the  objection  which  it  made  to  a  bar- 
gain and  sale  applied  equally  to  a  covenant  to  stand  seised. 
The  Massachusetts  doctrine  has  not  been  adopted  elsewhere, 
and  the  error  on  which  it  rests  has  been  often  pointed  out.2 
Even  in  Massachusetts  the  practical  inconvenience  of  the 
doctrine  is  done  away  with  by  the  other  erroneous  doctrine, 
peculiar  to  that  State,  that  a  covenant  to  stand  seised  can  be 

1  Welsh  v.  Foster,  12  Mass.  93,  N.  H.  381.  Wyman  v.  Brown,  50 

96.  The  same  law  is  laid  down  in  Me.  139  (overruling  the  dictum  in 

Wallis  v.  Wallis,  4  Mass.  135;  Pray  Marden  v.  Chase,  32  Me.  329).  Jor- 

v.  Pierce,  7  Mass.  381;  Parker  v.  dan  v.  Stevens,  51  Me.  78.  Drown 

Nichols,  7  Pick.  Ill;  Hunt  v.  Hunt,  v.  Smith,  52  Me.  141.  Savage  v. 

14  Pick.  374,  380,  381;  Gale  v.  Lee,  90  N.  C.  320.  Bunch  v.  Nicks, 

Coburn,  18  Pick.  397;  Brewer  v.  50  Ark.  367.  Chandler  v.  Chandler, 

Hardy,  22  Pick.  376.  55  Cal.  267.  See  Parsons  v.  Mills, 

*  Jackson  v.  Dunsbagh,  1  Johns.  2  Roll.  Ab.  786;  Gilbert,  Uses 

Cas.  92.  Rogers  v.  Eagle  Fire  Co.,  (Sugd.  ed.)  163;  4  Mich.  Law  Rev. 

9  Wend.  611.  Bell  v.  Scammon,  15  113;  Leake,  Land  Law,  112,  113. 


54  THE   RULE  AGAINST  PERPETUITIES. 

supported  by  a  pecuniary  consideration.1  One  error  neutral- 
izes the  other.  A  use  in  future  can  be  raised  by  a  bargain  and 
sale. 

§  58.  (2)  7s  a  Contingent  Use  good  although  preceded  by  an 
Estate  for  Years  ?  —  In  Adams  v.  Savage 2  (1703)  it  was  said, 
and  in  Rawley  v.  Holland 3  (1712)  it  was  held,  that  a  use 
limited  after  an  estate  for  years  to  a  person  not  in  esse  was 
bad  as  a  contingent  remainder  unsupported  by  a  freehold.4 

§  59.  The  soundness  of  these  two  cases  is  very  question- 
able. It  is  well  settled  that  if  a  future  limitation  can  be  con- 
strued as  a  remainder  it  must  be  so  construed,  and  not  as 
a  springing  use;  but  it  is  a  very  different  thing  to  say  that  a 
good  springing  use  must  be  construed  into  a  bad  remainder, 
because  it  is  preceded  by  an  estate  which  is  insufficient  to 
support  a  remainder.  To  construe  a  limitation  as  a  remain- 
der, if  it  can  be  a  remainder,  is  one  thing;  but  to  insist  upon 
construing  it  as  a  remainder,  when  it  cannot  be  a  remainder, 
seems  the  very  wantonness  of  destruction.  In  fact,  an  estate 
after  an  estate  for  years,  though  commonly  called  a  remainder, 
is  not  strictly  so:  a  remainder  is  an  estate  after  a  freehold; 
a  remainder-man,  so  called,  after  an  estate  for  years,  has  the 
present  seisin,  and  the  reason  why  at  common  law  an  estate 
cannot  be  given  to  a  person  not  in  esse  after  an  estate  for  years 
is,  that  there  is  no  one  to  take  the  present  seisin,  and  that  a 
freehold  cannot  be  granted  in  futuro.6  But,  by  way  of  use, 
a  freehold  can  be  granted  in  futuro. 

§  60.  The  cases  of  Adams  v.  Savage  and  Rawley  v.  Holland 
have,  accordingly,  been  much  criticised.6  But,  further,  they 

1  Trafton  v.  Hawes,  102  Mass.  Fitzgib.    146;    Hayes,    Limit.    72; 

633.  Gilbert,  Uses  (Sugd.  ed.)  169  el  seq. 

1  2  Ld.  Raym.  854;  2  Salk.  679.  •  Leake,  Land  Law,  320.    Chal- 

1  22  Vin.  Ab.  189;  2  Eq.  Cas.  lis,  Real  Prop.  (3d  ed.)  80,  99. 
Ab.  753.  «  Gilbert,  Uses   (Sugd.  ed.)  167, 

4  See  Earl    of    Bedford's  Case,  168,  note.    Hayes,  Limit.  67,  note, 

Moore,   718;   Pop.   3;   Chudleigh's  72,  note.     1  Sand.  Uses  (5th  ed.) 

Case,  1  Co.  135  a;  Penhay  v.  Hur-  147,    148.     Wilson,   Uses,   69,   70. 

rell,  2  Vern.  370;  Freem.  Ch.  213,  Challis  in  1  Law  Quart.  Rev.  412 

231,  235,  258;  Jackson  v.  Jackson,  et  seq. 


FUTURE  INTERESTS.  55 

must  be  considered  as  being  overruled  by  the  cases  in  which  it 
has  been  repeatedly  held  that  a  future  contingent  devise  after 
an  estate  for  years  is  a  good  executory  devise,  and  not  a  bad 
remainder.1  There  is  no  intelligible  distinction  in  this  respect 
between  springing  uses  and  springing  executory  devises,  and 
if  Adams  v.  Savage  and  Rawley  v.  Holland  have  not  been 
formally  overruled,  it  is  in  all  probability  because  the  ques- 
tion has  not  arisen  under  a  deed,  as  it  has  under  wills.2  The 
statement  may  therefore  be  ventured  that  a  contingent  use  is 
good  although  preceded  by  an  estate  for  years. 

§  61.  (3)  7s  a  Bargain  and  Sale  to  a  Person  not  in  esse 
good  f  —  It  is  clear  that  a  use,  either  in  possession  or  remainder, 
may  be  raised  by  bargain  and  sale  to  one  man,  on  a  considera- 
tion paid  by  another.3  In  Gilbert  on  Uses4  it  is  said:  "If  a 
man  bargains  and  sells  lands  to  one  for  life,  then  to  his  first 
son  in  tail,  who  is  not  yet  born,  it  seems  this  is  a  good  con- 
tingent remainder,  rising  out  of  the  estate  of  the  bargainer; 
but  't  is  said  by  Judge  Newdigate,5  that  by  bargain  and  sale 
only,  no  contingent  use  can  be  supported,  it  seems  he  means 
by  the  estate  of  the  bargainee;  but,  qucere,  whether  it  may 
not,  ut  ante,  but  it  seems  a  feoffment  or  fine  is  the  surest  way, 
and  so  to  put  it  out  of  the  power  of  the  owner  of  the  land  to 
destroy  the  future  uses.  Quaere,  whether  the  consideration 
given  by  the  party  in  uses  will  create  a  use  to  one  not  in  esse." 
To  this  passage  the  editor,  Mr.  Sugden,  has  appended  a  note: 
"It  seems  clear  that  a  contingent  use  to  a  person  not  in  esse 
cannot  be  raised  by  a  bargain  and  sale;  because  of  course  the 
intended  cestui  que  use  cannot  pay  a  consideration,  and  a 

1  Gore  v.  Gore,  2  P.  Wms.  28          *  Cf.   Challis,    Real    Prop.   (3d 

(1722).    Haywood  v.  Stillingfleet,  1  ed.)  172. 

Atk.  422  (1737).    Harris  v.  Barnes,  »  Sharington  v.  Strotton,  Plowd. 

4   Burr.   2157    (1768).     See   Lord  298,  307.    2  Roll.  Ab.  784,  pi.  6,  7. 

Mansfield  in  Goodtitle  v.  Burten-  2  Inst.  672.     Buckley  v.  Simonds, 

ehaw,    Fearne,    C.   R.,   App.   570,  Winch,  59,  61.     Case  of  Button's 

571;    Gilbert,    Uses    (Sugd.    ed.)  Hospital,  10  Co.  23,  34  o. 
171;  22  Law  Quart.  Rev.  261  et          *  (Sugd.  ed.)  398. 
sea.  *  2  Sid.  158. 


56  THE  RULE  AGAINST  PERPETUITIES. 

consideration  paid  by  the  tenant  for  life  would  not,  it  is  con- 
ceived, extend  to  the  unborn  son."  In  the  same  book  1  Gilbert 
says  that  a  man  cannot  in  a  bargain  and  sale  reserve  to  himself  a 
power  of  making  leases,  because  "no  uses  will  rise  without 
consideration,  therefore  not  to  the  lessees;  for  where  the  per- 
sons are  altogether  uncertain,  and  the  terms  unknown,  there 
can  be  no  consideration."  To  this  the  editor  adds  in  a  note: 
"But  although  a  general  power  of  leasing  cannot  be  reserved, 
yet  a  power  may  be  reserved  in  a  bargain  and  sale  to  grant  a 
lease  to  a  person  from  or  on  behalf  of  whom  a  valuable  con- 
sideration moved  at  the  execution  of  the  deed."  2  In  Sanders 
on  Uses 3  it  is  said  that  "if  there  be  a  bargain  and  sale  for  the 
life  of  the  bargainee,  with  a  power  for  him  to  make  leases,  a 
lease  made  under  that  power  cannot  operate  as  an  appoint- 
ment of  the  use  to  the  lessee." 

§  62.  The  statement  of  these  eminent  lawyers  appears  to 
have  little  support  either  in  principle  or  authority.  As  a  con- 
sideration paid  by  one  person  can  raise  a  use,  and  even  a  future 
use,  to  another,  there  seems  no  reason  why  it  should  not  raise 
a  use  to  a  person  not  in  esse.  If  the  cestui  que  use  had  to  pay 
or  promise  the  consideration,  that  would  be  a  reason  for  requir- 
ing him  to  be  in  esse;  but  as  the  consideration  can  be  paid  or 
promised  by  a  stranger,  the  reason  fails.  A  man  may  covenant 
to  stand  seised  to  the  use  of  relatives  not  in  esse,  e.  g.  to  the 
use  of  the  covenantor's  unborn  children.4  And  it  would  seem 
that  if  a  use  can  be  raised  to  an  unborn  person  by  a  covenant 
to  stand  seised,  it  can  be  raised  to  such  person  by  a  bargain 
and  sale. 

§  63.  The  only  authorities  cited  in  support  of  the  theory 
that  a  use  to  a  person  not  in  esse  cannot  be  raised  by  bargain 
and  sale  seem  to  be  2  Sid.  158  and  Pop.  81.  The  first  cita- 

1  P.  91.  177  a;  Warwick  v.  Gerrard,  2  Vern. 

1  See  also  Sugd.  Pow.  (8th  ed.)  7;  2  Hayes,  Conv.  (5th  ed.)  89  et 

138,  139.  seq.;  Sugd.  Pow.  (8th  ed.)  138,  139. 

•  2  Sand.  Uses  (5th  ed.)  62.  But  cf.  Bradford  v.  Griffin,  40  So. 

*  See  Bolls  v.  Winton,  Noy,  122;  Car.  468,  471,  §  398  a,  post;  4  Kent, 
Mildmay's  Case,  1  Co.  175,  176  6,  Com.  496. 


FUTURE  INTERESTS.  57 

tion  is  a  dictum  of  Newdigate,  J.,  in  Heyns  v.  Villars,1  a  case 
in  the  Upper  Bench  during  the  Commonwealth  (1659).  He 
says,  speaking  of  a  bargain  and  sale,  as  distinguished  from  a 
covenant  to  stand  seised  and  from  a  feoffment:  "By  this  con- 
veyance only  no  contingent  use  can  be  supported.  See  for  this 
4  Ma.  Dy.  f.  155  a,  ace."  This  case  referred  to  is  Tyrrel's 
Case,2  which  established  that  a  use  cannot  be  raised  out  of  the 
use  of  a  bargainee,  —  a  proposition  undoubtedly  correct,  but 
giving  no  support  to  the  theory  that  a  contingent  use  cannot 
be  raised  out  of  the  seisin  of  the  bargainer.  The  second  au- 
thority cited  is  Dillon  v.  Frame.3  Popham,  C.  J.,  there  says: 
"And  I  remember  that  when  I  was  a  counsellor  at  law  in  the 
time  of  the  Lord  Dyer,  where  a  feoffment  was  made  to  the  use 
of  one  for  life,  with  remainders  over,  with  restraint  to  alien, 
and  with  power  given  to  tenant  for  life  to  make  leases  for  one 
and  twenty  years  or  three  lives,  it  was  much  doubted  whether 
this  power  so  limited  to  him  without  words  in  the  assurance 
that  the  feoffee  and  his  heirs  shall  stand  seised  to  these  uses, 
shall  be  good  to  make  such  leases  or  not.  And  therefore  sup- 
pose that  a  man  bargains  and  sells  land  to  one  for  his  life  by 
deed  indented  and  inrolled,  and  make  therein  a  proviso,  that 
the  tenant  for  life  may  make  such  leases,  this  is  to  no  purpose 
as  to  power  to  make  a  lease."  What  the  Chief  Justice  seems  to 
mean  is  this :  In  case  of  a  feoffment  to  uses  with  power  in  A.  to 
make  leases,  it  is  doubtful  whether  any  use  will  arise  to  the 
lessees,  unless  it  is  expressly  stated  in  the  deed  of  feoffment  that 
the  feoffee  is  seised  to  the  uses  of  the  lessees  under  such  leases 
as  A.  shall  make;  and  so  in  a  bargain  and  sale,  with  power  in 
A.  to  make  leases,  no  use  will  arise  to  the  lessees,  unless  the 
bargain  and  sale  is  hi  terms  to  the  lessees  under  such  leases  as 
A.  shall  make.4  This  is  a  question  of  the  merest  form,  on 
which  the  matter  would  certainly  not  turn  at  the  present  day. 
Whatever  the  meaning  of  this  obscure  dictum,  it  is  a  slight 

1  2  Sid.  157,  158.  4  See    Mildmay's  Case,   1    Co. 

8  Dyer,  155  a.  175. 

1  Pop.  70,  81. 


58  THE  RULE  AGAINST  PERPETUITIES. 

foundation  on  which  to  build  so  inconvenient  a  doctrine,  as 
that  a  use  to  a  person  not  in  esse  cannot  be  raised  by  bargain 
and  sale.  It  is  entirely  obiter,  and  occurs  in  a  case  better 
known  as  Chudleigh's  Cose,1  abounding  in  the  most  futile  con- 
ceits of  school  logic.  Sugden  in  his  Treatise  on  Powers 2  well 
says  of  another  dictum  of  Popham  in  this  case:  "Indeed,  had 
the  whole  Court  delivered  this  opinion  it  would  not  at  this 
day  be  entitled  to  much  attention.  All  the  settlements  in 
the  kingdom  are  made  by  way  of  use  which  is  there  styled 
impious." 

§  64.  The  origin  of  the  notion  that  a  bargain  and  sale  can- 
not raise  a  use  to  a  person  not  in  esse  seems  to  have  been  this : 
In  a  covenant  to  stand  seised  a  general  power  to  lease  is  bad, 
because  the  lessee  may  not  be  of  the  blood  of  the  covenantor, 
and  by  covenant  to  stand  seised  no  use  can  be  raised  to  one 
who  is  not  of  kin  or  connected  by  marriage.3  Hence  it  was 
assumed  that  a  general  power  to  lease  must  be  bad  also  in  a 
bargain  and  sale.  The  fallacy  lay  in  forgetting  that  while  a 
consideration  of  blood  cannot  come  from  a  stranger,  a  money 
consideration  can.  The  true  doctrine  is  therefore  believed  to 
be  that  a  bargain  and  sale  to  a  person  not  in  esse  is  good* 

§  65.  The  practical  importance  of  this  last  discussion  lies 
in  the  fact  that  when  an  intended  conveyance  has  failed  to 
take  effect  as  a  feoffment  through  lack  of  livery  or  a  statutory 
substitute  for  livery,  it  may  take  effect,  if  it  be  for  a  con- 
sideration of  blood,  as  a  covenant  to  stand  seised,  or  if  it  be, 

1  Reported,  besides  ut  sup.,  1  guage  of  the  Virginia  Statute.  But 

Co.  120;  Jenk.  276;  1  And.  309.  in  the  first  edition  the  case  of 

1  1  Sugd.  Pow.  (7th  ed.)  22.  Smith  v.  Smith,  1  Jones,  135  (1853), 

*  In  a  covenant  to  stand  seised  was  overlooked.  In  this  case  it 

a  power  to  lease  to  unborn  relations  was  held  that  upon  a  bargain  and 

is  good.  See  §  62,  ante.  sale  to  A.  an  appointment  under  a 

4  In  Ocheltree  v.  McClung,  7  W.  general  power  given  to  B.  was  bad. 

Va.  232,  242-247,  it  was  considered  The  decision  is  rested  largely  upon 

that  a  use  to  persons  not  in  esse  the  remarks  of  Sugden  and  Sanders 

might  be  raised  by  a  bargain  and  cited  and  referred  to  supra.  Cf. 

sale.  It  is  not  clear  how  far  the  Taylor  v.  Eatman,  92  N.  C. 

decision  rested  on  the  special  Ian-  601. 


FUTURE  INTERESTS.  59 

or  be  alleged  to  be,1  for  a  valuable  consideration,  as  a  bar- 
gain and  sale.2  It  is  most  undesirable  to  hamper  the  effect 
of  this  sensible  and  beneficent  rule  of  law  by  an  unnecessary 
theory  that  a  use  to  persons  not  in  esse  cannot  be  raised  by 
a  bargain  and  sale.  For  if  such  theory  be  groundless,  then 
every  conveyance  will  operate  according  to  the  intention  of 
the  parties,  unless  in  the  very  rare  case  that  there  is  neither 
a  consideration  of  blood,  nor  a  valuable  consideration,  nor  a 
recital  of  a  valuable  consideration.3 

§  66.  If  the  three  questions  discussed  in  §§  56-65,  ante, 
have  been  correctly  answered  in  the  affirmative,  then  there 
is  no  restraint  on  the  creation  of  future  estates  in  land, 
either  by  way  of  use  or  by  will,  other  than  the  Rule  against 
Perpetuities. 

5.  Later  Legislation. 

§  67.  In  several  of  the  United  States  freehold  estates  may 
be  created  in  futuro  either  by  express  provision  of  statute 4  or 
by  inference  from  statutes  dispensing  with  the  necessity  of 
livery  of  seisin.5  And  although  in  several  of  the  States  (e.  g. 

1  "The  recital  of  a  consideration  Land  Co.,  47  N.  J.  Eq.  365.    See,  in 

ia  conclusive  for  the  purpose  of  sup-  Thatcher  v.  Omans,  3  Pick.  521; 

porting  the  deed  against  the  grantor  Handy   v.   McKim,    64   Md.    560; 

and  his  heirs."    Trafton  v.  Hawes,  Perry  v.  Price,  1  Mo.  553;  and  Lam- 

102  Mass.  533,  541.     So,  accord-  bert  v.  Smith,  9  Oreg.  185,  the  con- 

ingly,  Fisher  v.  Smith,  Moore,  569;  verse  case,  where  a  deed  purport- 

Wilkesv.  Leuson,  Dyer,  169  o;  Salis-  ing  to  be  a  bargain  and  sale  was 

bury  v.  Clarke,  61  Vt.  453;  Fuller  allowed  to  operate  as  a  feoff ment. 

v.  Missroon,  35  So.  Car.  314;  Davis  See  also  4  Mich.  Law  Rev.   Ill, 

v.  Jernigan,  71  Ark.  494;  Kuuku  v.  where  there  ia  a  collection  of  cases 

Kawainui,  4  Hawaii,  515;  Gilbert,  in  which  a  deed  expressed  in  one 

Uses  (Sugd.  ed.),  96.    See  Jackson  form  was   allowed  to   operate  in 

v.  Serbring,  16  Johns.  515;  Gault  v.  another. 

Hall,  26  Me.  561.    The  case  of  Sin-  3  See     Bryan     v.    Bradley,    16 

gleton  v.  Bremar,  4  McCord,  12,  ia  Conn.  474;  Eckman  v.  Eckman,  68 

perhaps  contra.  Pa.  460.     Cf .  4  Mich.  Law  Rev. 

1  Elphinstone,  Interp.  of  Deeds,  121. 

40  et  seq.    Pray  t;.  Pierce,  7  Mass.  *  1  Stimson,  Amer.  Stat.  Law, 

381.    Russell  v.  Coffin,  8  Pick.  143,  §  1421. 

151.    Hunt  v.  Hunt,  14  Pick.  374,  *  See  Abbott  v.  Holway,  72  Me. 

380-382.      Havens    v.    Sea    Shore  298;  Gorham  v.  Daniels,  23  Vt.  600; 


60  THE   RULE   AGAINST   PERPETUITIES. 

New  York,  Michigan,  and  Wisconsin  *)  uses  have  never 
existed  or  have  been  abolished,  which  of  itself  would  greatly 
limit  the  creation  of  estates  in  futuro,  yet  wherever  this  has 
been  done  it  is  believed  that  freehold  estates  can,  by  statute, 
be  created  in  futuro,  so  that  the  abolition  of  uses  occasions  no 
practical  inconvenience.2 

§  68.  A  possible  exception  to  this  is  Ohio.  The  Statute 
of  Uses  is  not  in  force  in  that  State.3  And  it  has  never  been 
expressly  enacted  that  freeholds  can  be  created  in  futuro. 
But  land  passes  there  by  deed  without  livery  of  seisin,4  and 
the  courts  of  Ohio  will  not  improbably  hold,  as  have  those 
of  Maine  and  other  States,5  that  when  livery  of  seisin  is  no 
longer  necessary  the  objection  to  the  creation  of  a  freehold 
in  futuro  falls  with  it. 

§  68  a.  In  Illinois  the  Supreme  Court  has  said,6  and  later 
directly  ruled,  that  a  fee  cannot  be  limited  upon  another  fee 
either  by  deed  7  or  by  will.8  The  learned  court  has  corrected 
this  slip  so  far  as  executory  devises  are  concerned,9  but  un- 
accountably has  failed  to  do  so  with  regard  to  limitations  by 

Savage  v.  Lee,  90  N.  C.  320;  Row-  son  v.  Dunsbagh,  1  Johns.  Gas.  91, 

land  v.  Rowland,   93  N.   C.   214;  97.   Nor  in  California.   Chandler  v. 

Sabledowsky  v.  Arbuckle,  50  Minn.  Chandler,  55  Cal.  267,  271. 
475;  Bunch  v.  Nicks,  50  Ark.  367;  3  Doe  d.  Thompson  v.  Gibson, 

Puukaiakea  v.  Hiaa,  5  Hawaii,  484;  2  Ohio,  339.    Helfenstine  v.  Garrard, 

2  Washb.  Real  Prop.  (5th  ed.)  641-  7  Ohio,  pt.  1,  275.    Williams  v.  First 

645.  Presbyterian  Soc.,  1  Ohio  St.  478, 

1  See  1  Greenl.  Cr.  302,  note;  497.    Carroll  v.  Olmsted,  16  Ohio, 

1     Stimson,     Amer.     Stat.     Law,  251,  260.     See  §  23,  ante. 
§  170.  «  Borland  v.  Marshall,  2  Ohio 

1  Ferguson  v.   Mason,  60  Wis.  St.  308,  313,  314. 
377.    And  see  Kuuku  v.  Kawainui,  *  See  note  5  to  preceding  sec- 

4  Hawaii,  515.  tion. 

Whether  the  Statute  of  Enrol-          •  McCampbell    v.    Mason,    151 

ments,  27  Hen.  VIII.  c.  16,  is  in  111.  500. 

force  in  America  generally,  quaere.  7  Palmer     v.     Cook,     159     111. 

It  is  in  force  hi  New  Brunswick.  300. 

Doe  d.   Hanington  v.   McFadden,  •  Ewing     v.    Barnes,    156     111. 

Bert.  153.     But  not  hi  Massachu-  61. 

aetts.    Trafton  v.  Hawes,  102  Mass.  •  Glover  v.  Condell,  163  111.  566. 

633,  541.    Nor  in  New  York.   Jack-  Strain  v.  Sweeny,  Id.  603. 


FUTURE   INTERESTS. 


61 


deed,1  and  this,  although  the  Statute  of  Uses  has  been  in  sub- 
stance expressly  re-enacted  in  Illinois.2 


1  Kron  v.  Kron,  195  111.  181. 

!  111.  Rev.  Sts.  c.  30,  §  3.  See 
Witham  v.  Brooner,  63  111.  344; 
Shackelton  v.  Sebree,  86  111.  616; 
Meacham  v.  Steele,  93  111.  135; 
Kirkland  v.  Cox,  94  111.  400;  O'Melia 
v.  Mullarky,  124  111.  506;  Vinson 
v.  Vinson,  4  111.  Ap.  138.  But  cf. 
Stoller  v.  Doyle,  257  111.  369. 

In  Palmer  v.  Cook,  ubi  sup., 
Thomas  S.  did  "grant,  bargain, 
sell,  convey,  and  warrant  to  Mary 
and  Emily"  certain  real  estate, 
"in  case  either  of  the  grantees  dies 
without  a  heir,  her  interest  to  re- 
vert to  the  survivor."  It  would 
seem  tolerably  clear  that  at  com- 
mon law,  had  words  of  inheritance 
been  used  in  the  grant,  the  grantees 
would  have  been  held  to  be  tenants 
in  common  in  tail,  with  a  remainder 
to  the  survivor  in  fee.  As  the 
grantees  were  presumably  rela- 
tions, neither  could  die  "without  a 
heir"  so  long  as  the  other  survived, 
and  therefore  "without  a  heir" 
must  be  construed  "without  heirs 
of  the  body."  How  this  would  be 
affected  by  the  Illinois  Statute 
(R.  S.  c.  30,  §§6,  13)  is  not  entirely 
clear.  The  most  probable  construc- 
tion would  be  that  each  grantee 
took  a  life  estate,  with  a  remainder 
to  her  children,  if  she  left  any  at 
her  death,  and  if  she  left  no  chil- 
dren, then  to  the  survivor.  Cf. 
Smith  v.  Kimbell,  153  111.  368.  It 
may  be  supposed  that  in  Palmer  v. 
Cook  there  was  an  adoption  of  the 
Massachusetts  doctrine,  §  57,  ante, 
that  a  freehold  in  futuro  cannot  be 
created  by  a  bargain  and  sale,  were 
it  not  that  the  Illinois  Court  has 
held  that  an  estate  in  futuro  can 


be  created  by  a  bargain  and  sale. 
Shackelton  v.  Sebree,  86  111.  616. 
This  matter  is  elaborately  discussed 
in  Kales,  Fut.  Int.  in  111.  §§  137- 
156.  And  see  Morton  v.  Babb, 
251  111.  488,  §  40  a,  note  2,  ante. 

The  Circuit  Court  of  the  United 
States  for  the  Northern  District  of 
Georgia  held,  in  Printup  v.  Hill, 
107  Fed.  Rep.  789,  that  by  the  law 
of  that  State,  before  the  passage  of 
the  Code,  no  shifting  use  could  be 
created  by  deed.  This  decision  and 
a  dictum  in  Greer  v.  Pate,  85  Ga. 
552,  rest  upon  a  misconception  of 
the  case  of  Cook  v.  Walker,  15  Ga. 
457,  where  it  was  held  in  accord- 
ance with  the  doctrine  generally 
received  in  the  United  States  that 
if  a  fee  is  granted  with  a  condi- 
tional limitation  over  in  case  the 
grantee  does  not  dispose  of  the 
land  by  deed  or  will,  such  condi- 
tional limitation  is  void.  This 
doctrine,  whether  right  or  wrong, 
as  to  which  see  Gray,  Restraints  on 
Alienation,  §§  56  et  seq.,  furnishes 
no  objection  to  the  validity  of  shift- 
ing uses  generally.  Executory  de- 
vises would  be  equally  objection- 
able. Under  the  present  Civil 
Code  of  Georgia  (1911),  §  3658,  a 
fee  can  be  limited  on  a  fee  either 
by  deed  or  by  will.  Davis  v.  Hol- 
lingsworth,  113  Ga.  210.  See  as  to 
a  similar  blunder  made  with  re- 
gard to  personal  property,  App.  F, 
§§846,  847,  post. 

Still  more  remarkable  is  a  dictum 
in  Simmons  v.  Cabaune,  177  Mo. 
336,  that  a  fee  cannot  be  limited  on 
a  fee  even  by  will,  that  is,  that 
there  can  be  neither  shifting  use 
nor  executory  devise  in  Missouri. 


62  THE  RULE  AGAINST  PERPETUITIES. 

6.  Equitable  Estates. 

§  69.  Of  future  uses  before  the  Statute  of  Uses,  and  of 
future  trusts  since,  there  has  been  no  restraint  on  the  creation, 
save  the  Rule  against  Perpetuities. 

B.  LANDS  OF  COPYHOLD  TENURE. 

§  70.  (1)  In  lands  held  in  copyhold  there  may  be  rever- 
sions and  remainders;  and  the  remainders  may  be  either 
vested  or  contingent.1  (2)  Copyholds  may  be  surrendered 
on  condition.2  (3)  In  some  manors  an  estate  to  A.  and  the 
heirs  of  his  body  gives  a  fee  simple  conditional  at  common 
law;  in  others  the  principle  of  the  Statute  De  Donis  has  been 
adopted  by  the  custom,  and  A.  takes  an  estate  tail.3  (4)  It 
is  not  clear  how  far  future  estates  other  than  remainders  can 
be  limited  in  a  surrender,4  and  to  avoid  the  doubt,  when  free- 
hold and  copyhold  lands  are  settled,  although  a  legal  estate  is 
given  in  the  freeholds,  the  copyholds  are  ordinarily  given  to 
trustees  to  hold  upon  trusts  corresponding  to  the  legal  estates 
in  the  freeholds.5  (5)  The  Statute  of  Uses  does  not  apply  to 
copyholds.6  (6)  When  copyholds  are  surrendered  to  the  use 
of  a  will,  an  executory  devisee  is  entitled  to  admittance.7 
The  Statute  Quia  Emptores  has  no  application  to  copyholds, 
and,  therefore,  a  determinable  fee  with  a  possibility  of  reverter 
seems  possible  in  a  limitation  of  copyholds.8  And  a  pos- 

1  Wins.   Real   Prop.    (22d  ed.)  2  Scriv.  Cop.  (7th  ed.)  107,  108. 

502.  3  Wms.    Real    Prop.    (22d  ed.) 

A  contingent  remainder  in  copy-  478-481.     Challis,  Real  Prop.  (3d 

hold  land  is  not  destroyed  by  the  ed.)  27,  300. 

forfeiture  or  surrender  of  the  par-  *  See    1   Scriv.    Cop.    (4th  ed.) 

ticular  estate;  the  freehold  in  the  159-188. 

lord  is  said  to  support  it,  until  the  B  3   Dav.  Prec.  Conv.  (3d  ed.) 

time    when    the    particular   estate  597. 

would  have  expired;  but  if  the  con-  •  Wms.    Real    Prop.   (22d    ed.) 

tingent  event  does  not  happen  be-  498. 

fore  the  expiration  of  such  time  the  7  Glass  v.  Richardson,  2  De  G. 

remainder  fails.    Fearne,  C.  R.  319,  M.  &  G.  658. 

320.    Scriv.  Cop.  (7th  ed.)  65,  66.  •  See  Doe  d.  Blomfield  v.  Eyre, 

Wms.  Real  Prop.  (22d  ed.)  503.  3  C.  B.  557;  5  C.  B.  713;  §  783,  post. 


FUTURE   INTERESTS.  63 

sibility   of   reverter  is   certainly  allowed  after  a  fee   simple 
conditional.1 

II.   PERSONAL  PROPERTY. 
A.   CHATTELS  REAL. 

§  71.  As  there  is  no  seisin  of  a  chattel  real,  an  estate  for 
years  can  be  granted  to  begin  in  futuro,  the  grantee  in  the 
meantime  having  an  interesse  termini.2  Thus  an  estate  can 
be  granted  to  A.  for  five  years,  then  to  B.  for  five  years,  and 
then  to  C.  for  five  years,  the  grants  to  B.  and  C.,  etc.,  being, 
not  remainders,  but  grants  to  commence  in  futuro,  independ- 
ent of  the  preceding  grant  or  grants.3  An  underlease  or  assign- 
ment of  a  term  may  be  created  to  take  effect  in  futuro. 

§  71  a.  A  grant  to  A.  for  life  of  an  existing  term  for  years 
gives  him  the  whole  term.  This  is  for  the  technical  reason 
that  an  estate  for  life  is  greater  than  any  estate  for  years, 
that,  therefore,  when  an  estate  for  life  in  a  term  for  years  is 
granted,  the  whole  term  passes;  and  that  no  more  passes,  is 
only  because  there  is  no  more  to  grant.4  But  a  grant  of  a 
leasehold  by  the  termor  to  hold  after  the  death  of  a  stranger 
who  takes  no  interest  in  the  land,  is  good,  for  though  there 
is  a  presumption  of  law  that  a  life  estate  cannot  be  less  than  a 
term  for  years,  there  is  no  presumption  that  a  particular  man 
will  not  die  within  the  term.5 

§  71  6.  In  England  the  doctrine  that  a  grant  for  life  of  a 
term  for  years  passes  the  entire  term  has  been  maintained  to 
the  present  day;  and  for  this  reason  in  making  settlements 
in  England  leaseholds  are  always  put  in  trust.6  In  America, 

1  Doe   d.  Simpson   v.  Simpson,  8  See   Wright   v.  Cartwright,   1 

4  Bing.  N.  C.  333;  5  Scott,  770;  Burr.  282. 

Doe    d.    Blesard    v.    Simpson    (in  *  See   App.  F,   §§    807  et  seq., 

Cam.  Scacc.),  3  Man.  &  G.  929;  post. 

Pemberton  v.  Barnes,  [1899]  1  Ch.  6  See  App.  F,  §§  810,  811,  post. 

644.     See  §  14,  ante.  •  See  App.  F,  §  812,  post;  Wms. 

*  See  Barwick's  Case,  5  Co.  93  6,  Settlements,  223,  224. 
94  6;  Weld  v.  Traip,  14  Gray,  330. 


64  THE  RULE  AGAINST  PERPETUITIES. 

however,  it  is  probable  that  chattels  real  will  be  dealt  with 
like  chattels  personal,  and  interests  for  life  in  them  allowed  to 
be  created  by  deed  as  well  as  by  will.1 

§  72.  A  condition  may  be  attached  to  a  lease,  on  breach 
of  which  the  lease  may  be  terminated  without  entry;2  and 
the  entire  leasehold  estate  may  be  assigned  on  a  condition  of 
which  the  assignor  may  take  advantage.3 

§  73.  The  Statute  of  Uses  does  not  apply  to  leaseholds,  and 
therefore  there  can  be  no  future  use  raised  out  of  a  term  for 
years.4 

§  74.  The  validity  of  executory  bequests  of  leaseholds, 
though  once  doubtful,5  was  established  by  Manning's  Case  6 
and  Lampet's  Case; 7  for  although  a  generation  of  judges 
grumbled  at  these  decisions,  they  have  never  been  overruled, 
and  the  law  is  now  perfectly  settled.8  Thus,  by  will,  a  lease- 
hold may  be  made  to  shift  upon  the  death  of  the  person  to 
whom  it  is  first  given,  or  upon  any  contingent  event.9 

§  75.  There  is  no  restraint  on  the  creation  of  equitable 
interests  in  terms  for  years.  Thus  leaseholds  may  be  given 
to  trustees,  in  trust  for  A.  for  life,  and  then  in  trust  for  B. 

§  76.  As  is  the  case  with  all  chattels,  if  an  interest,  legal 
or  equitable,  in  a  term  for  years,  be  given  to  A.  and  his  heirs 
or  to  A.  and  the  heirs  of  his  body,  A.  takes  the  entire  inter- 
est 10  which  on  his  death  goes  to  his  executors. 

1  See  App.  F,  §§  816,  856,  post.  Statute  of  Uses  out  of  a  freehold 

In  Maryland  it  has  been  held  that  estate, 

a  life  interest  can  be  created  by  •  See  §§  148-151,  post. 

deed  in  a  leasehold  estate  renewable  *  8  Co.  94  6. 

forever,  and  the  Court  expressed  a  7  10  Co.  46  b. 

strong  opinion  that  a  life  interest  8  See  2  Swanst.  464,  465. 

could  be  created  by  deed  in  any  *  For    the    theory  upon   which 

leasehold  estate.    Culbreth  v.  Smith,  the  courts   went  in   reaching  this 

69  Md.  450.     Cf.  Arthur  v.  Cole,  result,   see  App.   F,    §   815,    post. 

56  Md.  100.  For  the  case  of  a  devise  of  a  term 

1  See  §  12,  note,  ante.  to  A.  for  life  without  any  gift  over, 

1  Doe  d.  Freeman  v.  Bateman,  see  App.  F,  §§  819,  820,  post. 

2  B.  &  Aid.  168.  10  Brouncker  v.  Bagot,  1  Mer. 

*  Leake,    Land   Law,   118.     Of  271. 
course  a  term  can  be  raised  by  the 


FUTURE  INTERESTS. 


65 


B.  CHATTELS  PERSONAL. 

§  77.  English  Law.  —  The  English  law  will  first  be  stated, 
and  then  the  American  law.  Taking  the  English  law,  the 
first  thing  to  be  noted  is  that  as,  according  to  the  prevail- 
ing opinion,  a  parol  gift  of  a  chattel  is  not  good  without  de- 
livery, there  can  be  no  gift  of  a  chattel  by  parol  to  begin  in 
futuro.1  But  if  the  conveyance  is  by  deed  or  for  value,  it 
can  be  made  to  take  effect  at  any  time,  present  or  future. 

§  78.  Chattels  personal  may  be  bailed  for  a  term  of  years, 
but  it  is  believed  that  a  grant  for  life  passes  the  entire  interest, 
and  that  any  gift  over  is  void  at  law.2  Therefore,  in  settling 
property,  chattels  personal,  like  leaseholds,  are  settled  in  trust, 
the  equitable  interest  shifting  on  the  death  of  a  cestui  que 
trust  or  other  future  event.  Chattels  personal  may  be  granted 
on  condition,  and  upon  breach  the  grantor  can  revest  the  prop- 
erty in  himself  without  a  redelivery.3 

9  W.  R.  747.  Martin  v.  Reid,  31 
L.  J.  C.  P.  126,  127.  Douglas  w. 
Douglas,  226  L.  T.  R.  127.  Re 
Ridgway,  15  Q.  B.  D.  447.  Poul- 
lain  v.  Poullain,  79  Ga.  11.  But 
though  in  Re  Harcourt,  31  W.  R. 
578,  Pollock,  B.,  refused  to  follow 
Irons  v.  Smallpiece,  the  Court  of 
Appeal,  in  Cochrane  v.  Moore,  25 
Q.  B.  D.  57,  in  an  elaborate  opinion, 
reaffirmed  the  doctrine  of  Irons  v. 
Smallpiece.  See  6  Law  Quart.  Rev. 
446.  And  the  common  notion  is 
now  so  prevalent  that  it  is  not 
likely  that  it  will  be  departed  from. 
See  §  96,  post. 

z  Wms.  Pers.  Prop.  (17th  ed.) 
393.  This  is  the  prevailing  view 
in  the  English  text-books.  But 
there  appears  to  be  no  judicial 
decision  in  support  of  it,  and  see 
2  Bl.  Com.  398,  and  App.  F,  §  829, 
post. 

1  See  §  72,  ante. 


1  The  leading  authorities  for  the 
common  view  are:  Bract.  16  a; 
Jenk.  109;  Irons  v.  Smallpiece,  2 
B.  &  Aid.  551;  Shower  v.  Pilck,  4 
Ex.  478;  Noble  v.  Smith,  2  Johns. 
52.  The  case  in  which  this  view 
was  first  clearly  announced  was 
Irons  v.  Smallpiece,  ubi  sup.  That 
decision  was  hardly  in  accordance 
with  the  weight  of  the  authorities 
at  the  time.  See  2  Edw.  IV.  25; 
Perk.  §§  57,  59;  Wortes  v.  Clifton, 
1  Roll.  R.  61;  Hudson  v.  Hudson, 
Latch,  214;  Ward  v.  Turner,  2  Ves. 
Sr.  431,  442.  And  its  soundness 
has  been  seriously  questioned.  Wil- 
braham  v.  Snow,  2  Wms.  Saund. 
47  a.  London  &  Brighton  R.  Co. 
v.  Fairclough,  2  M.  &  G.  674,  691, 
note.  Lunn  v.  Thornton,  1  C.  B. 
379,  381,  note.  Ward  v.  Audland, 
16  M.  &  W.  862,  870.  Flory  v. 
Denny,  7  Exch.  581,  583.  Quids 
v.  Harrison,  10  Exch.  572,  575. 
Whiter  v.  Whiter,  4  L.  T.  R.  639; 


66  THE   RULE   AGAINST  PERPETUITIES. 

§  79.  The  Statute  of  Uses  does  not  apply  to  chattels  per- 
sonal any  more  than  to  chattels  real. 

§  80.  It  has  been  settled  since  Manning' 's  and  Lampet's 
Cases  1  that  an  executory  bequest  of  leaseholds  is  good  at 
law,  but  it  has  been  said  that  "it  may  be  doubted  whether 
the  doctrine  of  executory  bequests  is  applicable  in  law  to  any 
other  chattels  than  chattels  real."  2  The  authorities  are  as 
follows:  In  the  Year  Book  of  37  Hen.  VI.  30  (1459),  a  testator 
made  A.  and  B.  his  executors,  and  bequeathed  a  graile  or 
mass-book  to  B.  to  have  and  use  for  the  term  of  his  life,  and 
after  his  death  the  remainder  to  A.  in  the  same  manner  for 
the  term  of  his  life,  and  after  his  death  the  remainder  to  the 
parishioners  of  a  church  forever.  Prisot,  Chief  Justice  of  the 
Common  Pleas,  said  that  the  property  was  in  the  executors 
"and  not  in  the  devisees,  for  they  will  have  only  the  occupa- 
tion and  ' manurance'  for  the  term  of  their  two  lives,  and  so 
no  property  in  them."  Bro.  Ab.  Devise,  13,  under  this  case 
says:  "In  the  time  of  Hen.  VIII.  and  Edw.  VI.  it  is  agreed 
to  be  good  law  that  the  occupation  can  so  remain,  but  if  the 
thing  itself  was  devised  to  the  use  the  remainder  is  void,  for 
a  gift  or  devise  of  a  chattel  for  an  hour  is  forever,  and  the 
donee  or  devisee  can  give,  sell,  and  dispose  of  it,  and  the 
remainder  dependent  on  it  is  void,  which  note,  for  it  is  '  valde 
bone  diversitie.'  "  3  In  Owen,  33,  under  the  heading  of  Trinity 
Term,  7  Eliz.  (1565),  is  this:  "Note  by  Dyer  [C.  J.  of  the 
C.  P.]  that  the  Lord  Fitz-James,  late  Lord  Chief  Justice  of 
England,  did  devise  his  land  to  Nicholas  Fitz-James  in  tail, 
with  divers  remainders  over,  and  in  the  same  devise  he  devised 
divers  jewels  and  peeces  of  plate,  viz.  the  use  of  them  to  the 
said  Nicholas  Fitz-James,  and  the  heires  males  of  his  body. 
In  this  case  it  was  the  opinion  of  the  Court  that  the  said 
Nicholas  had  no  property  in  the  said  plate,  but  onely  the  use 

»  8  Co.  94  6;  10  Co.  46  b;  $  74,  Dyer,  358  6,  359  a;  Plowd.  519, 

ante.  521,  522;  Paramour  v.  Yardlejv 

1  Wins.  Pere.  Prop.  (17th  ed.)  Plowd.  539,  542;  Bro.  New  Gas.. 

395.  §  334;  Anon.,  Dyer,  7  o. 

»  See    Welcden    v.    Elkington, 


FUTURE  INTERESTS.  67 

and  occupation.  And  the  same  law  where  the  devise  was  that 
his  wife  should  inhabit  in  one  of  his  houses  which  he  had  for 
terme  of  years  during  her  life,  because  the  wife  takes  no  interest 
in  the  terme,  but  onely  an  occupation  and  usage,  out  of  which 
the  executors  cannot  eject  her  during  her  life;  but  Walsh  held 
the  contrary." 

§  81.  From  these  meagre  indications  it  would  appear  that 
originally  no  legal  right  of  property  could  be  created  by  will 
in  a  chattel,  either  real  or  personal,  other  than  an  absolute 
interest,  but  that  the  use  or  occupation  of  a  chattel  might  be 
given  to  A.  for  life,  and  that  although  A.  thereby  acquired 
no  property,  he  yet  gained  a  right  of  occupation.1 

§  82.  In  Mallet  v.  Sackford 2  (1607)  a  term  was  devised  to 
A.  for  life,  and  on  A.'s  death  over.  The  Court  were  divided 
in  opinion  whether  the  gift  over  was  void;  and  in  this  case 
apparently,  according  to  1  Roll.  Ab.  610,  the  Court  said: 
"If  a  man  devise  a  chattel  personal  to  one  for  life,  the  re- 
mainder to  another,  it  is  a  void  remainder."  But  two  years 
later,  in  Manning's  Case,3  it  was  held  that  upon  a  devise  of  a 
term  to  A.  for  life,  and  on  A.'s  death  to  B.,  B.  took  a  legal 
estate  by  executory  devise;  and  that  it  was  immaterial  whether 
the  gift  was  of  the  term  or  of  the  use  of  the  term.  This  was 
confirmed  in  Lampet's  Case.*  From  the  way  these  decisions 
were  received  it  is  clear  that  the  doctrine  was  an  innovation. 
Was  the  innovation  to  be  extended  to  chattels  personal? 

§  83.  It  had  been  pointed  out  by  counsel,  and  agreed  to  by 
the  Court  of  King's  Bench  in  Paramour  v.  Yardley*  that 
there  might  be  an  occupation  of  a  chattel  personal  distinct 
from  the  property,  but  that  the  devise  of  the  occupation  of  a 
term  was  the  same  as  a  devise  of  the  land  itself.  Accordingly 
it  would  not  be  strange  to  find  preserved,  as  to  chattels  personal, 
the  distinction  between  a  bequest  of  the  use  of  a  chattel  and  a 
bequest  of  the  chattel  itself,  which  distinction  had  disappeared 

1  See     Paramour    v.    Yardley,          »  8  Co.  94  6. 
Plowd.  539,  542.  «  10  Co.  46  6;  §  74,  ante. 

»  Cro.  Jac.  198.  •  Plowd.  539,  542. 


68  THE   RULE   AGAINST   PERPETUITIES. 

as  to  chattels  real.  Such  is  in  fact  the  case.  In  the  Court  of 
Common  Pleas,  Anon.1  (1641),  "A  prohibition  was  prayed  unto 
the  Council  of  the  Marches  of  Wales,  and  the  case  was  thus: 
A  man  being  possessed  of  certain  goods  devised  them  by  his  will 
unto  his  wife  for  her  life,  and  after  her  decease  to  J.  S.,  and 
died.  J.  S.  in  the  life  of  the  wife  did  commence  suit  in  the 
Court  of  Equity,  there  to  secure  his  interest  in  remainder,  and 
thereupon  this  prohibition  was  prayed.  And  the  justices, 
viz.  Banks,  Chief  Justice,  Crawley,  Foster  (Reeve  being  absent), 
upon  consideration  of  the  point  before  them,  did  grant  a  pro- 
hibition, and  the  reason  was  because  the  devise  in  the  remainder 
of  goods  was  void,  and  therefore  no  remedy  in  equity,  for 
JEquitas  sequitur  legem.  And  the  Chief  Justice  took  the 
difference,  as  in  37  H.  6,  30,  Br.  Devise  13,  and  Com.  Welkden 
&  Elkington's  Case,  betwixt  the  devise  of  the  use  and  occupa- 
tion of  goods,  and  the  devise  of  goods  themselves.  For  where 
the  goods  themselves  are  devised,  there  can  be  no  remainder 
over;  otherwise,  where  the  use  or  occupation  only  is  devised. 
It  is  true  that  heirlooms  shall  descend,  but  that  is  by  custom 
and  continuance  of  them,  and  also  it  is  true  that  the  devise  of 
the  use  and  occupation  of  land  is  a  devise  of  the  land  itself,  but 
not  so  in  case  of  goods,  for  one  may  have  the  occupation  of 
the  goods,  and  another  the  interest,  and  so  it  is  where  a  man 
pawns  goods  and  the  like.  For  which  cause  the  Court  all 
agreed  that  a  prohibition  should  be  awarded."  There  are 
three  things  shown  from  this  case  as  to  the  then  understand- 
ing of  the  law:  (1)  That  a  devise  of  chattels,  after  a  devise  of 
them  for  life,  was  bad;  while  a  devise  of  them  subject  to  a 
devise  of  the  use  of  them  was  good.  (2)  That  the  same  rule 
prevailed  in  equity  as  in  law.  (3)  That  the  interest  which 
the  devisee  of  the  use  of  a  chattel  had,  though  not  a  right  of 
property,  was  a  legal  right  of  possession  like  that  of  a  pawnee. 
§  84.  But,  in  a  series  of  decisions  in  the  last  half  of  the 
seventeenth  century,  it  was  held  that,  in  equity,  if  a  chattel 
personal  be  bequeathed  to  A.  for  life,  and  on  A.'s  death  to  B., 

1  March,  106. 


FUTURE  INTERESTS.  69 

the  bequest  of  the  chattel  to  A.  will  be  considered  as  a  be- 
quest of  the  use  to  him;  that  the  property  will  be  considered 
to  belong  to  B.;  and  that  A.  will  have  only  the  use.1  In  Vachel 
v.  Vachel  and  Catchmay  v.  Nicholas  the  opinions  of  common- 
law  judges  were  sought,  and  were  in  accordance  with  the 
judgments  delivered,  so  we  may  assume  that  the  common 
law  was  considered  to  agree  with  equity  on  this  point. 

§  85.  It  may  safely  be  considered  as  settled  at  the  present 
day  that  on  a  bequest  of  a  personal  chattel  to  A.  for  life,  and 
on  A.'s  death  to  B.,  A.'s  right  to  enjoy  it  during  his  life,  and 
B.'s  right  to  have  it  on  A.'s  death,  will  both  be  somehow 
protected;  but  the  manner  of  doing  so  is  not  entirely  clear. 
There  seems  to  be  three  modes  in  which  it  may  be  done.  First, 
A.  may  be  considered  as  having  a  right  to  possession  at  law, 
and  the  immediate  vested  right  of  property  as  being  in  B. 
This  appears  to  be  the  theory  of  the  cases  cited  in  the  pre- 
ceding sections.  Second,  A.  may  be  considered  as  having 
the  legal  right  of  property,  which  on  his  death  shifts  to  B. 
This  appears  to  have  been  Lord  Thurlow's  opinion,2  and  it  is 
the  opinion  of  the  modern  English  text-writers.3  For  most 
questions 4  it  is  immaterial  which  of  these  two  theories  is 
adopted.  On  either  hypothesis,  both  A.  and  B.  have  legal 
rights,  and  are  entitled  to  legal  remedies. 

§  86.  Third.  The  whole  interest  may  pass  to  A.  at  law, 
who  will  hold  the  chattel  in  trust  for  himself  for  life,  and  on 
his  death  for  B.  This  was  possibly  Mr.  Fearne's  view; 6  but 

1  Vachel  v.  Vachel,  1  Ch.  Gas.  37;  Upwell  v.  Halsey,  1  P.  Wins. 

129  (1669).    Catchmay  v.  Nicholas,  651;  Randall  v.  Russell,  3  Mer.  190, 

Cas.    temp.    Finch,     116     (1673).  195. 

Smith  v.  Clever,  2  Vern.  38,  59          !  See  Foley  v.  Burnell,  1  Bro. 

(1688).     Shirley  v.   Ferrers,    1   P.  C.  C.  274,  278. 
Wms.  6,  note  (1690).     Clarges  v.  «  See  App.  F,  §  831,  post. 

Albemarle,    2    Vern.    245    (1691).  *  But  not  for  all,  see  §  86  a,  post. 

Anon.,    Freem.    Ch.    206     (1695).  6  Fearne,  C.  R.  401,  414.     See 

Hyde  v.  Parrat,   1  P.  Wms.  1;  2  Anon.,   Freem.   Ch.    137;    and  cf. 

Vern.  331  (1695).    Tissen  v.  Tissen,  Sabbarton  v.  Sabbarton,  Andrews, 

1  P.  Wms.  (1718)  500.   See  Boucher  333,  335;  Cas.  temp.  Talb.  55,  245; 

v.  Antram,  2  Ch.  Rep.  65;  Pollexf.  Doo  v.  Brabant,  4  T.  R.  706,  710. 


70  THE  RULE  AGAINST  PERPETUITIES. 

the  case  of  Hoare  v.  Parker  l  is  perhaps  inconsistent  with  such 
a  theory,  for  there  the  person  interested  in  chattels,  after  the 
death  of  the  one  who  had  enjoyed  them  during  her  life,  brought 
trover  for  them,  to  maintain  which  he  must  have  had  a  legal 
right  to  possession.  The  case  is,  however,  so  imperfectly 
reported,  that  it  furnishes  a  dangerous  ground  for  argument. 
The  weight  of  authority  certainly  preponderates  in  favor  of 
one  of  the  two  former  views.  The  question  is  important,  for 
if  the  last  view  be  sound,  the  owner  for  life,  having  the  whole 
legal  estate,  may  transfer  the  chattel  to  a  purchaser  for  value 
without  notice,  who  will  hold  it  free  from  the  claim  of  one 
interested  in  remainder,  for,  under  the  last  view,  this  claim 
is  ex  hypothesi  equitable  only. 

§  86  o.  Although,  as  has  been  said,2  it  is  immaterial  in 
most  cases  which  of  the  first  two  theories  is  adopted;  yet 
there  are  two  classes  of  questions  (as  will  be  shown  hereafter) 
in  which  the  adoption  of  the  one  or  the  other  theory  is  vital, 
questions  of  remoteness,  and  questions  on  reversionary  in- 
terests where  there  is  a  life  interest  given  without  any  gift 
over.3  The  first  theory  is  that  of  the  older  decisions,  indeed 
it  may  be  said  (with  one  exception) 4  of  all  the  decisions.  The 
second  is  that  of  the  modern  English  text-books.  The  former 
theory  is  believed  to  be  correct.  There  is  no  reason  why  the 
use  of  a  chattel  personal  belonging  to  B.  should  not  be  given 
to  A.  for  Me,  the  property  remaining  vested  in  B.  The  modern 
theory  arose,  apparently,  from  a  mistaken  analogy  to  chattels 
real.  There  is  a  legal  presumption  that  a  life  estate  is  larger  than 
any  term  for  years,  but  there  is  no  legal  presumption  that  an 
interest  for  life  in  a  picture  will  last  longer  than  the  picture 
itself,  and  therefore  there  is  no  technical  objection  to  regarding 
the  right  to  a  chattel  of  which  the  use  has  been  given  to  another 
for  life,  as  vested  in  the  owner.  In  other  words,  if  a  chattel  is 

1  2  T.  R.  376.  6    Morell,    250;   stated    App.    F, 

1  $  85,  ante.  §  833,  post.     See   In  re  Thynne, 

1  See  App.  F,  §§  838-842,  post.  [1911]  1  Ch.  282. 
*  In  re  Tritton,  81  L.  T.  R.  301; 


FUTURE  INTERESTS. 


71 


bequeathed  to  A.  for  life  and  then  to  B.,  B.  ought  to  be  regarded 
as  having  a  vested  interest  in  the  nature  of  a  remainder  in 
the  chattel  and  not  an  executory  interest.  Appendix  F  is 
mainly  devoted  to  an  examination  of  these  two  views.1 

§  87.  There  is  no  restraint  on  the  creation  of  equitable 
interests  in  chattels  personal. 

§  88.  American  Law.  —  Coming  to  the  United  States,  future 
limitations  in  wills  will  first  be  taken  up,  and  then  those  in 
deeds.  Wills.  —  In  America  a  future  limitation  by  will  of  a 
chattel  personal  passes  a  legal  interest.  This  has  not  only 
been  said  in  many  cases  in  which  the  parties'  equitable  rights 
were  in  controversy,  but  has  been  expressly  determined  in  suits 
at  law.2  Even  in  North  Carolina,  where,  as  will  be  seen,  a 


1  See  also  24  Law  Quart.  Rev.  431. 

2  Smith  v.  Bell,  6  Pet.  68,  78. 
Griggs  v.  Dodge,  2  Day,  28.    Taber 
v.   Packwood,   Ib.   52.     Moffat  v. 
Strong,  10  Johns.  12,  18.    Smith  t>. 
Van  Ostrand,  64  N.  Y.  278.    State 
v.    Warrington,    4    Hairing.     55. 
Dashiell  v,  Dashiell,  2  Har.  &  G. 
127.    Royall  v.  Eppes,  2  Munf .  479. 
Bartlett  v.  Patton,  33  W.  Va.  71. 
Keating  v.  Reynolds,   1   Bay,   80. 
Henry  v.  Means,  2  Hill  (S.  C.)  328. 
Rogers  v.   Randall,   2  Speers,   38. 
Marshall    v.    Rives,    8    Rich.    85. 
Russell    v.    Kearney,    27    Ga.    96. 
Lott  v.  Meacham,  4  Fla.  144.    Adie 
v.  Cornwell,  3  T.   B.  Monr.  276. 
Moore  v.  Howe,  4  T.  B.  Monr.  199. 
Thrasher  v.  Ingram,  32  Ala.  645. 
See  Sampson  t;.  Randall,   72  Me. 
109;  Albee  t;.  Cummings,  12  Gush. 
382,    387;    Thomas   v.    Castle,    76 
Conn.   447;   Westcott  v.   Cady,   5 
Johns.  Ch.  334;  Deihl  v.  King,  6 
S.  &  R.  29;  Culbreth  v.  Smith,  69 
Md.  450;  Hill  v.  Hill,  Dudl.  Eq.  71, 
83,  84;  Horry  v.  Glover,  2  Hill,  Ch. 
515,  523;  Riley,  Ch.  53;  Philips  v. 
Crews,  65  Ga.  274;  Waldo  v.  Cum- 


mings, 45  111.  421;  Trogdon  v.  Mur- 
phy, 85  111.  119;  McCall  v.  Lee,  120 
111.  261 ;  Bowling  v.  Dobyns,  5  Dana, 
434;  Jackson  v.  Sublett,  10  B.  Monr. 
467;  Maulding  v.  Scott,  13  Ark.  88; 
Damon  v.  Dickson,  7  Hawaii,  694; 
State  v.  Welsh,  175  Mo.  Ap.  303.  It 
was  so  held  in  Virginia,  in  several 
cases,  as  early  as  1736.  Edmonds  v. 
Hughes,  1  Jeff.  2.  Waddy  v.  Stur- 
man,  Id.  5.  Jones  v.  Langhorn,  Id. 
37.  Spicer  v.  Pope,  Id.  43. 

It  has  been  said  of  future  limita- 
tions of  personal  property  that 
"although  allowed,"  they  "are  cer- 
tainly not  to  be  favored;  it  is  with 
reluctance  that  they  have  been 
sanctioned  by  our  courts;  and  they 
will  lean  against  the  creation  of 
them,  either  by  deed  or  will." 
Brewster  v.  McCall,  15  Conn.  274, 
*291;  and  see  Kirkpatrick  v.  David- 
son, 2  Ga.  297,  301,  302.  But  the 
correctness  of  such  a  general  prop- 
osition may  be  doubted.  See 
Banks  v.  Marksberry,  3  Lit.  275, 
279;  Welsch  v.  Belleville  Bank,  94 
111.  191,  204. 


72  THE  RULE  AGAINST  PERPETUITIES. 

future  limitation  of  a  chattel  personal  by  deed  is  bad,  a  future 
limitation  by  will  of  such  chattel  is  good.1 

§  89.  That  a  future  limitation  by  will  gives  a  legal  and 
not  merely  an  equitable  interest  appears  to  be  universally 
held  to  be  law  in  America.  The  sole  exception,  if  it  be  an 
exception,  is  Homer  v.  Shelton?  In  that  case  personal  prop- 
erty was  bequeathed  to  A.,  with  an  executory  bequest  over, 
should  A.  at  his  death  leave  only  one  child.  The  question 
in  dispute  was  whether  A.  was  entitled  to  possession  of  the 
property  without  giving  security.  The  Court  held  that  as  A. 
was  the  absolute  owner  of  the  property,  he  was  entitled  to  the 
possession  of  it  without  giving  security;  but  that  he  would 
hold  it  "in  trust,  subject  to  the  limitation  over."  It  is  cer- 
tainly not  clear  that  the  Court  meant  to  decide  that  the  execu- 
tory bequest  gave  an  equitable  interest  only.  As  was  natural 
in  a  court  having  then  no  equitable  jurisdiction,  equitable 
terms  such  as  "trust"  were  loosely  employed.  It  does  not 
seem  that  the  decision  would  have  been  affected  by  the  fact 
of  the  gift  over  being  legal  rather  than  equitable.  The  result 
of  holding  an  executory  bequest  of  a  chattel  personal  to  give 
only  an  equitable  interest  would,  as  has  been  said,3  be  very 
important;  for,  if  such  were  the  case,  the  legatee  for  life  could 
pass  the  property  to  a  bona  fide  purchaser,  free  from  any 

1  Jones    v.    Zollicoffer,     N.    C.  if  one  to  whom  a  chattel  has  been 

Term  Rep.  212.  Burnett  v.  Roberts,  bequeathed  for  life  assigns  it  by 

4  Dev.  1.    Knight  v.  Wall,  2  Dev.  what  purports  to  be  an  absolute 

&  B.  125.    Knight  v.  Leak,  Id.  133.  conveyance,  the  right  of  those  hav- 

Threadgill  v.  Ingram,  1  Ired.  577.  ing  the  future  interest  is  discon- 

Carter  v.  Spencer,  7  Ired.  14.     In  tinued,  and  turned  into  a  chose  in 

Jones  v.  Zollicoffer,  it  was  expressly  action.     Broome  v.  King,   10  Ala. 

held    that    a    purchaser    without  819.     Price  v.  Talley,  18  Ala.  21. 

notice    from    the    person    having  But  this  seems  to  be  the  employ- 

the  life  interest  could  not  hold  as  ment  of  a  nomenclature  and  ideas 

against  those  entitled  under  the  ex-  foreign  to  the  modern  law  of  per- 

ecutory  bequest;  and  see  Burnett  v .  sonal    property.      See    Pickett    v. 

Roberts,  ubi  sup.',  and  Braswell  v.  Doe  d.    Pope,   74    Ala.    122;   and 

Morehead,  Busb.  Eq.  26.    Cf.  also  §  90,  post. 

Russell  v.  Kearney,  27  Ga.  96.  •  2  Met.  194,  206,  207. 

In  Alabama  it  has  been  held  that  *  See  §  86,  ante. 


FUTURE   INTERESTS.  73 

claim  under  the  executory  bequest.  Until  a  more  express 
decision  than  Homer  v.  Shelton,  it  will  not  be  safe  to  assume 
that  the  courts  of  Massachusetts  mean  to  depart  from  what  is 
now  everywhere  else  the  accepted  doctrine  in  America.1 

§  90.  After  an  absolute  bequest  of  personalty,  any  future 
limitation  must  be  an  executory  bequest;2  whether,  after  a 
bequest  of  personalty  for  Me,  a  future  limitation  is  to  be 
regarded  as  in  the  nature  of  a  remainder  according  to  the 
first  theory  mentioned  above,3  or  as  an  executory  bequest,  is 
not,  except  on  the  question  of  remoteness,4  important,  for  the 
future  interest  is,  on  either  theory,  a  legal  one. 

§  90  a.  But  if  a  chattel  personal  is  bequeathed  to  one  for 
his  life,  and  nothing  is  said  in  the  will  as  to  its  destination, 
then  it  becomes  necessary  to  decide  between  the  two  theories. 
If  the  legatee  has  the  absolute  interest,  then  as  there  is  no 
gift  over,  the  chattel  must  pass  on  the  legatee's  death  to  the 
legatee's  executor  as  part  of  his  estate.  It  is  so  held  in  Dela- 
ware.5 But  if  the  legatee  has  only  the  use  and  occupation  of  the 
chattel,  then  on  the  legatee's  death,  it  reverts  to  the  testator's 
executor.  This,  which  is  believed  to  be  the  correct  view,6  is 
the  prevailing  one  in  the  United  States.7 

§  91.  Deeds.  —  It  is  the  common  opinion  in  the  United 

1  And  is  probably  also  the  law  in  '  See  §  86  a,  ante. 

England.     §§85,   86,   ante.     See,  7  See  cases  cited,  App.  F,  §  852, 

however,    Chisholm    v.    Starke,    3  note,  post.    The  question  does  not 

Call,  25;  and  in  Glover  v.  Condell,  seem  to  have  arisen  in  England  with 

163  111.  566,  a  future  limitation  of  regard  to  chattels  personal.    In  the 

personalty  is  called  an  equitable  case  of  a  term  for  years  it  has  been 

interest.  held  that  there  is  a  reversion  to  the 

2  On  the  erroneous  notion  which  testator's  executor.    Eyres  v.  Faulk- 
has  sometimes    found    expression,  land,    1   Salk.   231,   although  this 
that   there   can   be   no   executory  seems  contrary   to  the  theory  as 
limitation    after    an    absolute   be-  to  chattels  real  maintained  hi  Eng- 
quest  of  personalty,   see  App.   F,  land.     See   §  71 6,  ante;  App.  F, 
§§  846,  847,  post.  §§842,  856,  post. 

3  §§  85,  86  a,  ante.  The  notes  to  §  90  in  the  first 

4  As    to    which    see   App.    F,  edition  of  this  book,   the  author 
§§  838-841,  851.  now  believes  to  be  incorrect. 

5  See  App.  F,  §  852,  post. 


74 


THE   RULE  AGAINST  PERPETUITIES. 


States  that  a  future  limitation  of  a  chattel  personal  as  a  legal 
interest  can  be  created  by  deed  as  well  as  by  will.  Thus,  upon 
the  gift  of  a  chattel  to  A.  for  life,  and  after  his  death  to  B., 
B.  takes  a  legal  interest.1  So  upon  the  gift  of  a  chattel  to  A., 
but  if  he  dies  without  leaving  issue  at  his  death  then  to  B., 
B.  has  a  legal  interest.2  So,  if  he  dies  in  the  lifetime  of  C.s 
And  hi  like  manner,  upon  a  gift  by  deed  of  a  chattel  personal 
to  take  effect  on  the  death  of  the  donor,  the  donee,  on  the 
death  of  the  donor,  becomes  entitled  to  possession  as  legal 
owner.4 

1  Tucker  v.  Stevens,  4  Des.  325. 
M'Call  v.  Lewis,  1  Strob.  442.  Nix 
v.  Ray,  5  Rich.  423.  (Cooper  v. 
Cooper,  Brevard  MSS.  Rep.;  1 
Rice,  So.  Car.  Dig.  207,  contra,  is 
overruled.)  Sharman  v.  Jackson, 
30  Ga.  224.  Keen  v.  Macey,  3  Bibb, 
39.  Price  v.  Price,  5  Ala.  578.  Wil- 
liamson v.  Mason,  23  Ala.  488.  See 
Sampson  v.  Randall,  72  Me.  109, 
112;  Fuller  v.  Fuller,  84  Me.  475, 
481;  Bradley  t>.  Mosby,  3  Call,  50; 
Kirkpatrick  v.  Davidson,  2  Ga.  297, 
301;  Owen  v.  Cooper,  46  Ind.  524; 
McCall  v.  Lee,  120  111.  261;  Aikin 
v.  Smith,  1  Sneed,  304;  Lyde  v. 
Taylor,  17  Ala.  270;  Jones  v.  Hos- 
kins,  18  Ala.  489;  Harris  v.  McLaran, 
30  Miss.  533,  568,  569. 

J  Hill  v.  Hill,  Dudl.  Eq.  71. 
See  Powell  v.  Brown,  1  Bail.  100; 
Welch  t>.  Kinard,  Speers  Eq.  256, 
262;  Henderson  v.  Kinard,  29  So. 
Car.  15.  In  Betty  v.  Moore,  1 
Dana,  235,  237,  there  was  a  gift  by 
parol  of  the  absolute  interest  in  a 
slave  on  condition  that  if  the  donee 
should  die  without  children,  the 
slave  should  revert  to  the  donor. 
This  conditional  or  reversionary 
gift  was  held  void,  although  an 
executory  devise  to  the  same  effect 
would  have  been  good.  In  Wilson 


p.  Cockrill,  8  Mo.  1,  the  testator 
gave  certain  slaves  to  A.,  her  exe- 
cutors, administrators,  and  assigns, 
and  other  slaves  to  B.,  his  executors, 
administrators,  and  assigns,  but 
should  either  die  without  heirs, 
"then  the  property  of  the  one  so 
dying  shall  absolutely  vest  in  the 
other."  A.  and  B.  were  children 
of  the  testator.  A.  died  without 
issue;  the  gift  over  to  B.  was  held 
void.  It  is  not  easy  to  follow  the 
reasoning  of  the  Court.  If  the  de- 
cision means  that  an  executory 
gift  by  deed  of  personalty  is  bad, 
although  it  might  be  good  by  will, 
this  case  and  Betty  v.  Moore,  ubi 
sup.,  seem  to  be  the  only  cases  in 
the  United  States,  outside  of  North 
Carolina,  to  support  such  a  dis- 
tinction. See  App.  F,  §  847,  post. 

*  Security  Co.  v.  Hardenburgh, 
53  Conn.  169. 

4  Dukes  v.  Dyches,  2  Strob.  Eq. 
353,  note.  Dawson  v.  Dawson, 
Rice,  Eq.  243,  261.  Jaggers  v. 
Estes,  2  Strob.  Eq.  343,  378,  397. 
(Vernon  v.  Inabnit,  2  Brev.  411, 
and  the  dictum  in  Ingram  v.  Porter, 
4  McCord,  198,  contra,  are  over- 
ruled.) Robinson  v.  Schly,  6  Ga. 
515.  McGlawn  v.  McGlawn,  17 
Ga.  234.  Horn  v.  Gartman,  1  Fla. 


FUTURE  INTERESTS.  75 

§  92.  In  North  Carolina  alone  is  the  opposite  doctrine  held. 
There,  upon  a  gift  of  a  chattel  personal  by  deed  to  A.  for  life, 
and  upon  A.'s  death  to  B.,  or  to  A.  with  an  executory  limi- 
tation over  to  B.  upon  a  definite  failure  of  A.'s  issue  for  life, 
the  gift  to  B.  is  void.1  And  so  if,  in  a  gift  of  a  chattel  per- 
sonal by  deed  to  A.,  the  chattel  is  reserved  to  the  grantor  for 
his  life,  the  gift  to  A.  is  void.2 

§  93.  In  1823  the  Legislature  of  North  Carolina  enacted 3 
that  "Every  limitation  by  deed  or  writing  of  a  slave  or  slaves, 
which  limitation,  if  contained  hi  a  last  will  and  testament, 
would  be  good  and  effectual  as  an  executory  devise  or  be- 
quest, shall  be  and  is  hereby  declared  to  be  a  good  and  effectual 
limitation  hi  remainder  of  such  slave  or  slaves,  and  any  limi- 
tation made  or  reserved  to  the  grantor,  vendor,  or  donor,  in 
any  such  deed  or  writing,  of  a  slave  or  slaves,  shall  be  good 
and  effectual  hi  law:  Provided  such  limitation,  had  it  been 
made  to  another  person,  would  be  good  and  effectual  according 
to  the  preceding  clause:  Provided,  also,  that  all  such  deeds  or 
writing  shall  be  proved,  witnessed,  and  registered."4  The 

73.     Banks  v.  Marksberry,  3  Lit.  1  Murph.  466,  contra,  is  overruled; 

275.     Caines  v.   Marley,   2  Yerg.  and  Timms  v.  Potter,  1  Hayw.  234, 

582.  Johnson  v.  Mitchell,  1  Humph.  apparently  contra,  is  explained  in 

168,  173.    Adams  v.  Broughton,  13  Gilbert  v.  Murdock,  2  Hayw.  182. 

Ala.  731.    Gullett  v.  Lamberton,  6  See  Vass  v.  Hicks,  3  Murph.  493; 

Ark.  109.     See  Hope  v.  Hutchins,  Hughes  v.  Cannon,  2  Humph.  589. 
9  G.  &  J.  77;  Culbreth  v.  Smith,  96          *  Rev.  Sts.  c.  37,  §  22. 
Md.  450.  4  For  cases  under  this  Statute, 

1  Cutlar  v.  Spillar,  2  Hayw.  130.  see  Tillman  v.  Sinclair,  1  Ired.  183; 

Gilbert  v.  Murdock,  Id.  182.    Dowd  Bonner  v.  Latham,  Id.  271;  Bald- 

v.  Montgomery,  2  Car.  Law  Rep.  win  t;.  Joyner,  1  Ired.  123;  Sutton 

100.    Smith  v.  Tucker,  2  Dev.  541.  v.  Craddock,  1  Ired.  Eq.  134;  Mur- 

Hunt  v.  Davis,  3  Dev.  &  B.  42.  phy  v.  Merritt,  3  Jones,  37;  Parish 

Harrell  v.  Davis,  8  Jones,  359.  v.  Merritt,  Id.  38;  Holton  v.  Mc- 

*  Graham  v.  Graham,  2  Hawks,  Allister,  6  Jones,  12.    The  Statute 

322.     Foscue  v.  Foscue,  3  Hawks,  was  held  not  to  apply  to  the  case 

538.     Sutton  v.  Hollowell,  2  Dev.  of  a  gift  of  a  slave  for  life,  with  no 

185.     Morrow  v.  Williams,  3  Dev.  limitation  over.    Newell  v.  Taylor, 

263.    Hunt  v.  Davis,  3  Dev.  &  B.  3  Jones,  Eq.  374,  but  this  was  reme- 

42.    Foscue  v.  Foscue,  2  Ired.  Eq.  died  by  the  Revised  Code  of  1854, 

321.     The  case  of  Duncan  v.  Self,  c.  37,   §  21,  which  provided  that 


76  THE  RULE  AGAINST  PERPETUITIES. 

Statute  applies  only  to  slaves;  as  to  all  other  chattels  personal 
the  law  remained  and  remains  as  it  was  before  the  Statute;  l 
and  the  courts  of  North  Carolina  presume  the  law  in  other 
States  to  be  like  their  own  common  law.2 

§  94.  It  might  perhaps  have  been  thought  that  in  North 
Carolina,  although  an  executory  gift  by  deed  passed  nothing  at 
law,  yet  the  first  taker  might  be  held  a  trustee  for  those  to 
whom  the  gift  over  was  made; 3  but  this  does  not  appear  to 
have  been  ever  held;  and,  on  the  contrary,  it  was  decided  in 
Butler  v.  Godley 4  that  on  a  deed  of  a  slave  to  A.  hi  trust  for 
himself  for  life,  and  afterwards  in  trust  for  B.,  A.'s  interest 
was  absolute,  and  B.  took  nothing  in  equity.6 

§  95.  In  the  United  States,  outside  of  North  Carolina  a 
gift  inter  vivos  of  a  chattel  personal,  after  a  life  interest  (whether 
such  gift  is  to  be  regarded  as  vested  or  executory 6)  has  always 
been  held  valid;  and  (except  in  the  cases  of  Betty  v.  Moore 
and  Wilson  v.  Cockrill 7)  the  same  has  been  held  when  the 
first  gift  does  not  purport  to  be  for  life,  but  to  be  of  an  abso- 
lute interest,  and  the  gift  over  must  therefore  be,  of  course, 
executory.8 

§  96.  It  being  the  generally  accepted  doctrine  that  a  parol 
gift  of  a  chattel  personal  can  be  effected  only  by  delivery,9  it 

"Every  kind  of  estate  in  slaves,  be  8  See  Harrell  v.  Harrell,  5  Jones, 

the  same  vested  or  contingent,  or  Eq.  229.    Upon  the  gift  of  a  chattel 

for  life  or  for  years,  which  is  allowed  personal  by  deed  to  A.  in  trust  for 

to  be  created  and  limited  by  any  the  grantor  for  life,  but  upon  the 

last    will    or    testament,    may    be  grantor's  death  in  trust  for  himself, 

created    and    limited    by    way    of  A.,  after  the  grantor's  death,  was 

reservation,    remainder,    reversion,  held  entitled  at  law  to  the  prop- 

or  otherwise,  by  any  written  con-  erty.    Lewis  v.  Lewis,  1  Jones,  444. 

veyance  of  slaves."  •  See  §  86  a,  ante. 

1  Lance  v.  Lance,  5  Jones,  413.  7  See  these  cases  stated,  §  91, 

Dail  v.  Jones,  85  N.  C.  221.  note,    ante.      See    also    Young    v. 

»  Griffin  v.  Carter,  5  Ired.  Eq.  Young,  80  N.  Y.  422,  440;  Welsch 

413.    Brown  v.  Pratt,  3  Jones,  Eq.  v.  Belleville  Bank,  94  111.  191,  205; 

202.  Bunch  v.  Nicks,  50  Ark.  367,  376. 

1  See   Hill    v.  Hill,   Dudl.    Eq.  Cf.  App.  F,  §§  846,  847,  post. 

71,  83.  •  See  §  90,  ante. 

*  IDev.  94.  •  See  §77,  ante. 


FUTURE  INTERESTS.  77 

has  often  been  held  that  a  parol  gift  to  take  effect  on  the 
death  of  the  donor  is  bad.1  The  reason  does  not  apply  when 
a  parol  gift  of  a  chattel  personal  to  A.  for  life,  with  a  limita- 
tion on  A.'s  death  to  B.,  is  accompanied  by  a  delivery  of  the 
chattel  to  A. ;  but  it  has  nevertheless  been  held  in  Kirkpatrick 
v.  Davidson 2  and  Deer  v.  Devin 3  that  such  a  future  limita- 
tion on  a  parol  gift  is  void.4  But  in  Brummet  v.  Barber 5  a 
future  limitation  on  a  gift,  with  delivery,  of  a  chattel,  evidenced 
by  a  writing  not  under  seal,  was  held  good;  and  this  seems  the 
sounder  view;  and  in  Knight  v.  Donahoo  6  a  parol  gift,  with 
delivery,  of  a  chattel  for  Me  and  remainder  was  held  good  for 
both  the  life  interest  and  the  interest  in  remainder. 

§  97.  We  have  seen  7  that  it  has  sometimes  been  held  that 
on  a  bequest  for  life  of  a  chattel  personal  with  no  gift  over, 
there  was  no  reversionary  interest;  but  also  that  the  better- 
supported  doctrine  seems  to  be  that  a  reversionary  interest  is 
as  valid  as  an  executory  bequest.  So  it  has  been  held  that 
on  a  gift  inter  vivos  of  a  personal  chattel  to  A.,  an  executory 
limitation  over  to  the  donor  is  good.8 

III.    SUMMARY. 

§  98.  The  result  of  the  investigation  pursued  in  the  present 
chapter  is  this:  Originally  the  creation  of  future  interests  at 
law  was  greatly  restricted,  but  now,  either  by  the  Statutes  of 

1  Young  v.  Young,  80  N.  Y.  422.      Leigh,  403,  412;  Hallum  v.  Yourie, 
Pitts    v.    Mangum,    2    Bail.    588.      1  Sneed,  369. 

M'Ginney  v.  Wallace,  Riley,  290.  *  2  Hill  (S.  C.)  543,  549. 

Jaggers  v.  Estes,  2  Strob.  Eq.  343,  «  3  B.  Monr.  277.     Cf.  Betty  v. 

378,  397.    Bennett  v.  Cook,  28  So.  Moore,  1  Dana,  235. 

Car.   353.     Payne  v.  Lassiter,   10  7  See  §  90  a,  ante. 

Yerg.  507.  8  Higgenbotham    v.   Rucker,    2 

2  2    Ga.   299.     So    Maxwell  v.  Call,  313.    Johnson  v.  Johnson,  104 
Harrison,  8   Ga.  61,   67;   Yarbor-  Ky.  714.     See  Betty  v.  Moore,  1 
ough  v.  West,  10  Ga.  471.  Dana,  235,  237;  Wilson  v.  Cockrill, 

3  1  Humph.  66.  8  Mo.  1,  7;  §  91,  note,  ante.    Cf.  the 

4  And    see  to  the  same    effect  common  case  of  a  chattel  mortgage, 
Fitzhugh  v .  Anderson,   2  Hen.   &  observed  upon  in  Hill  v.  Hill,  Dudl. 
M.  289,  302;  London  v.  Turner,  11  Eq.  71,  76. 


78  THE   RULE   AGAINST  PERPETUITIES. 

Uses  and  of  Wills,  or  by  modern  legislation,  or  by  the  gradual 
action  of  the  courts,  all  restraints  on  the  creation  of  future 
interests,  except  those  arising  from  remoteness,  have  been 
done  away.1  This  is  true  in  the  United  States,  save  in  North 
Carolina.  In  England  and  North  Carolina  it  is  true,  with  the 
exception  that  legal  future  interests  in  personalty  cannot  be 
there  created  inter  vivos.  This  practically  reduces  the  law 
restricting  the  creation  of  future  interests  to  the  Rule  against 
Perpetuities. 

1  See  Glover  v.  Condell,  163  111.  566,  592. 


VESTED  AND   CONTINGENT  INTERESTS. 


CHAPTER  III. 
VESTED  AND  CONTINGENT  INTERESTS. 

§  99.  THUS  far  has  been  considered  what  future  interests  in 
property  can  be  created.  Before  discussing  the  application  of 
the  Rule  against  Perpetuities  to  them,  a  distinction  should  be 
pointed  out  between  vested  and  contingent  interests.  To  do 
so  is  the  object  of  this  chapter.  The  distinction  is  of  great 
importance  as  concerns  the  Rule  against  Perpetuities,  for  a 
true  l  vested  interest  is  never  obnoxious  to  the  Rule,  while 
a  contingent  interest  not  only  may  be,  but  often  is.  The  vest- 
ing of  interests  in  real  and  in  personal  estate  will  be  considered 
separately. 

I.  REAL  ESTATE. 

§  100.  Remainders.  —  Originally  the  word  vestire  meant  to 
put  in  possession  of  land;  to  deliver  the  seisin.2  When,  in- 
stead of  granting  the  fee  to  one  person,  a  particular  estate 
was  given  to  one  and  the  remainder  to  another,  the  remainder- 
man was  vested  with  a  portion  of  the  fee.  Mr.  Hawkins  seems 
quite  correct  in  saying  that  the  word  "vested"  had  originally 
no  reference  to  the  absence  of  contingency.  A  remainder  was 
said  to  be  vested,  because  the  remainder-man  had  a  portion 
of  the  fee  of  which  livery  of  seisin  had  been  made.3  Indeed, 

1  See  §§  110  a,  205,  post.  is  a  peculiarly  English  conception. 

1  Ducange,  sub  voc.  2  P.  &  M.  In  other  systems  of  law  such  inter- 

Hist.  Eng.  Law  (2d  ed.)  32,  85.  ests  take  effect  by  way  of  substitu- 

J  Hawkins,  Wills  (2d  ed.)  221.  tion.  Markby,  Elements  of  Law, 

Cf.  Carney  v.  Kain,  40  W.  Va.  758,  §§  330,  331.  2  Holdsworth,  Hist. 

822.  See  §  972,  post.  Eng.  Law,  296.  §  971  post.  They  are 

In  the  common  law  freehold  inter-  analogous  to  shifting  uses  and  ex- 
eats in  land  by  way  of  remainder  or  ecutory  devises  in  the  English  law. 
reversion  are  called  estates.  This  Freehold  estates  could  be  created 


80 


THE   RULE  AGAINST  PERPETUITIES. 


at    first    there    seem    to    have    been    no     contingent    re- 
mainders.1 

§  101.  Since  contingent  remainders  have  been  recognized, 
the  line  between  them  and  vested  remainders  is  drawn  as 
follows:  A  remainder  is  vested  in  A.,  when,  throughout  its 
continuance,  A.,  or  A.  and  his  heirs,  have  the  right  to  the 
immediate  possession,  whenever  and  however  the  preceding 
freehold  estates  may  determine.2  A  remainder  is  contingent 
if,  in  order  for  it  to  come  into  possession  the  fulfilment  of 
some  condition  precedent  other  than  the  determination  of  the 
preceding  freehold  estates  is  necessary.3 


only  by  livery  of  seisin,  therefore 
freehold  estates  could  not  be  cre- 
ated in  futuro,  but  a  continuous 
ownership  of  land  might  be  cut 
up  into  a  particular  estate  and  re- 
mainder, and  by  giving  livery  of 
seisin  to  the  first  tenant,  the  estates 
in  remainder  were  created.  Lit. 
§  721.  Co.  Lit.  49  a,  143  a.  But 
the  ownership  must  be  continuous. 
Challis,  Real  Prop.  (3d  ed.)  104. 

On  the  idea  of  remainders  in  the 
earliest  times  see  2  P.  &  M.  Hist. 
Eng.  Law  (2d  ed.)  21;  Professor 
Maitland  in  6  Law  Quart.  Rev. 
25,  26. 

1  Wms.  Real  Prop.  (22d  ed.) 
361.  3  Holdsworth,  Hist.  Eng. 
Law,  91,  116-118.  Scrutton,  Land 
in  Fetters,  115.  3  Enc.  Laws  of 
Eng.  (2d  ed.)  515. 

1  See  Johnson  v.  Edrnond,  65 
Conn.  492,  499;  Starnes  v.  Hill,  112 
N.  C.  1,  9;  Storrs  v.  Burgess,  29 
R.  I.  269,  273. 

1  Professor  A.  M.  Kales  has 
considered  the  nature  of  vested 
and  contingent  remainders  in  his 
treatise  on  Future  Interests  in 
Illinois,  §§  8-113,  and  in  the  fol- 
lowing articles:  22  Law  Quart.  Rev. 
250,  383;  24  Law  Quart.  Rev.  301; 


20  Harv.  Law  Rev.  192;  8  Columbia 
Law  Rev.  245;  3  111.  Law  Rev.  373, 
379;  5  111.  Law  Rev.  381,  386. 
Professor  Kales's  views  have  been 
commented  on  by  Professor  Bing- 
ham,  5  Mich.  Law  Rev.  497,  and 
by  the  author's  learned  friend, 
Archibald  Graustein,  Esq.,  20  Harv. 
Law  Rev.  243. 

Professor  Kales's  views  have  un- 
dergone some  modification,  but  his 
matured  opinion  is  contained  in  a 
correspondence  with  which  he  has 
favored  the  author.  In  a  letter  of 
the  date  of  October  27,  1911,  he 
says  (the  italics  are  the  author's): 
"The  true  view  is  that  a  remain- 
der is  contingent  either  (1)  when 
limited  on  an  event  which  may 
happen  either  before  or  at  the 
time  of  or  after  the  termination, 
whenever  and  in  whatever  manner, 
of  the  preceding  particular  estate, 
in  which  case  it  is  destructible  by 
a  rule  of  law  defeating  intent;  or 
(2)  when  it  is  subject  to  a  condi- 
tion precedent  in  fact  and  in  form 
to  its  ever  taking  effect  in  posses- 
sion, in  which  case  it  is  inalienable 
at  law  inter  vivos.  On  the  other 
hand,  a  remainder  to  be  vested 
must  possess  two  characteristics: 


VESTED   AND   CONTINGENT   INTERESTS. 


81 


§  102.  A  remainder  is  none  the  less  vested  because  it  may 
terminate  before  the  remainder-man  comes  into  possession; 
thus  if  land  be  given  to  A.  for  life,  remainder  to  B.  for  life, 
B.  may  die  before  A.,  yet  the  remainder  is  vested,  for  during 
its  continuance,  namely,  the  life  of  B.,  it  is  ready  to  come 
into  possession  whenever  and  however  A.'s  estate  determines. 
This  result  is  not  affected  by  the  fact  that  the  termination  of 
the  remainder  is  contingent;  that  is,  that  it  is  subject  to  a 
condition  subsequent.  For  instance,  if  land  is  devised  to  A. 
for  life,  remainder  to  B.  and  his  heirs,  but  if  B.  dies  unmarried 
then  to  C.  and  his  heirs,  B.'s  remainder  is  vested,  although  it 
is  possible  that  he  may  die  unmarried  in  A.'s  lifetime. 

§103.  The  law  favors  the  vesting  of  estates,  and  therefore 
prefers  to  construe  conditions  as  subsequent  rather  than  pre- 
cedent;1 so  that  when  a  condition  attached  to  a  remainder 
(1)  It  must  stand  ready  to  take  and  the  use  of  the  word  with  this 


effect  in  possession,  whenever  and 
however  the  preceding  estates  may 
determine,  so  that  it  is  not  destructi- 
ble by  a  ride  of  law  defeating  intent; 
and  (2)  It  must  not  be  subject  to 
a  condition  precedent  in  form  and 
in  fact  (other  than  the  termination 
of  the  preceding  estate)  to  its  taking 
effect  in  possession,  so  that  it  would 
be  alienable  inter  vivos  at  law." 

Two  criticisms  suggest  them- 
selves: First.  Contingent  remain- 
ders are  often  said  to  be  destructi- 
ble, but  the  expression  is  not  strictly 
accurate.  If  a  contingent  remain- 
der-man fails  to  come  into  posses- 
sion, it  is  not  because  his  estate 
is  destroyed,  but  because  he  has 
never  had  an  estate,  but  only  the 
potentiality  of  an  estate.  When  a 
remainder  is  said  to  be  destructi- 
ble, what  is  meant  is  that  it  needs 
a  particular  estate  to  support  it, 
and  that  this  estate  is  destructible. 
To  call  the  remainder  destructible 
avoids  an  inconvenient  periphrasis, 


meaning  is  so  common,  that  it 
would  be  pedantic  not  to  employ 
it.  But  to  use  the  word  when  dis- 
tinguishing vested  from  contingent 
remainders  tends  to  bring  about 
that  confusion  of  conditions  pre- 
cedent and  conditions  subsequent 
which  has  been  such  a  fruitful 
source  of  error,  and  had  therefore 
best  be  avoided.  Second.  A  con- 
tingent remainder  is  at  common 
law  inalienable;  a  vested  remainder 
is  not.  But  this  incident,  which  is 
common  to  all  interests  on  con- 
ditions precedent,  does  not  affect 
the  question  whether  a  remainder 
is  vested  or  contingent.  In  many 
jurisdictions  contingent  remainders 
have  become  alienable,  but  that 
does  not  prevent  their  continuing 
to  be  contingent  remainders. 

1  See  Duffield  v.  Duffield,  1 
Dow  &  Cl.  268,  311.  This  rule, 
like  all  rules  of  construction,  has 
at  the  present  time  less  influence 
with  the  courts  than  it  once  had. 


82  THE   RULE  AGAINST  PERPETUITIES. 

might  take  effect  after  it  had  come  into  possession,  the  con- 
dition will  be  deemed  subsequent  and  the  remainder  vested, 
although  the  contingency  may  happen  before  the  end  of  the 
particular  estate,  and  so  the  remainder  may  never  come  into 
possession,  as  in  the  case  put  in  the  preceding  section. 

§  104.  One  class  of  cases,  however,  presents  some  difficulty, 
that,  namely,  in  which  the  contingency,  if  it  happens  at  all, 
must  happen  at  or  before  the  termination  of  the  particular 
estate,  and  the  coming  into  possession  of  the  remainder. 
Suppose,  for  instance,  a  gift  to  A.  for  life,  remainder  to  B. 
and  his  heirs,  but  if  B.  dies  before  the  termination  of  the 
particular  estate,  then  to  C.  and  his  heirs.  Here,  if  the  con- 
dition ever  affects  B.'s  estate  at  all,  it  will  prevent  it  from 
coming  into  possession;  it  will  never  divest  it  after  it  has 
once  come  into  possession.  Remainders  subject  to  conditions 
of  this  sort  might  have  been  regarded  hi  three  ways. 

§  105.  (1)  If  the  law  looked  on  vested  and  contingent 
interests  with  an  impartial  eye,  it  would  seem  that  such 

See  Crapo  v.  Price,  190  Mass.  317,  the  particular  estate  should  deter- 
319,  320.  As  to  whether  the  courts  mine  before  A.'s  death,  by  forfeiture 
have  not  gone  too  far  in  disregard-  or  otherwise.  Doe  d.  Poor  v.  Con- 
ing rules  of  construction,  cf.  Gray,  sidine,  6  Wall.  458,  and  cases  cited. 
Nature  and  Sources  of  the  Law,  Wms.  Real  Prop.  (22d  ed.)  349. 
§  700.  The  decisions  to  the  contrary  in 
Estates  are  construed  as  vested,  New  Hampshire,  Hall  v.  Nute,  38 
not  only  by  holding  a  condition  sub-  N.  H.  422,  and  Hayes  v.  Tabor, 
sequent  rather  than  precedent,  but  41  N.  H.  521,  were  inexplicable 
often  also  by  holding  that  there  is  aberrations  of  an  able  and  learned 
no  condition  at  all.  Thus  a  devise  but  eccentric  court.  They  were 
to  a  widow  for  life  if  she  did  not  without  any  precedent,  see  6  Alb. 
marry  again,  but  if  she  did,  then  L.  J.  361;  and  they  have  now 
to  A.,  was  held  to  give  an  estate  to  been  overruled  in  New  Hampshire, 
the  widow  till  she  married  or  died,  Kennard  v.  Kennard,  63  N.  H.  303. 
and  a  vested  remainder  to  A.  Lux-  Wiggin  v.  Perkins,  64  N.  H.  36. 
ford  v.  Cheeke,  3  Lev.  125.  So  in  Parker  v.  Ross,  69  N.  H.  213.  Cf. 
the  case,  which  is  of  daily  occur-  Bates  v.  Gillett,  132  111.  287.  But 
rence  in  practice,  where  an  estate  see  Starnes  v.  Hill,  112  N.  C.  1; 
is  given  to  A.  for  life,  and  on  his  Richardson  v.  Richardson,  152  N. 
death  to  B.,  the  remainder  to  B.  is  C.  705. 
vested,  and  B.  will  take  although 


VESTED   AND    CONTINGENT   INTERESTS.  83 

remainders  should  be  held  contingent.  A  condition  which 
may  prevent  an  estate  coming  into  possession,  but  which 
can  never  divest  it  after  it  has  come  into  possession,  is  a  con- 
dition hi  its  nature  precedent  rather  than  subsequent.  But 
the  preference  of  the  law  for  vested  interests  has  prevented 
this  view  being  adopted.1 

§  106.  (2)  Such  a  condition  might  be  regarded  hi  all  cases 
as  a  condition  subsequent,  the  circumstance  that  the  contin- 
gency must  happen,  if  at  all,  at  or  before  the  end  of  the  par- 
ticular estate  being  regarded  as  immaterial.  The  effect  of  this 
construction  would  be  to  make  a  remainder  vested  at  any  time, 
if  there  was,  at  that  time,  a  person  ready  and  entitled  to  take 
possession  as  remainder-man,  should  the  particular  estate  then 
determine,  although,  should  the  particular  estate  determine  at 
some  other  time,  such  person  might  not  be  entitled  to  the 
remainder.  Upon  this  theory,  if  there  was  a  devise  to  A.  for 
life,  remainder  to  his  surviving  children,  the  remainder  would 
be  at  any  particular  moment  vested  hi  the  children  who  would 
survive  A.  should  he  at  that  moment  die. 

§  107.  The  New  York  Revised  Statutes  seem  to  have  de- 
fined a  vested  remainder  hi  this  sense:  "Future  estates  are 
either  vested  or  contingent.  They  are  vested,  when  there  is  a 
person  in  being,  who  would  have  an  immediate  right  to  the 
possession  of  the  lands  upon  the  ceasing  of  the  intermediate  or 
precedent  estate.  They  are  contingent,  whilst  the  person  to 
whom,  or  the  event  upon  which,  they  are  limited  to  take 
effect  remains  uncertain."  2  It  is  doubtful  whether  this  piece 
of  legislative  definition  was  intended  to  change  the  common 

1  Cf.     5     Mich.     Law     Rev.  possession  of  the  property,  on  the 

507.  determination  of  all  the  interme- 

1  N.  Y.  Rev.  Sts.  pt.  2,  c.  1,  tit.  diate  or  precedent  estates.     It  is 

2,   §  13.     The  phraseology  of  the  contingent    while    the    person    to 

Statute   was   altered   by   Laws   of  whom  or  the  event  on  which  it  is 

1896,  c.  547,  §  30,  and  now  reads:  limited  to  take  effect  remains  un- 

"A  future  estate  is  either  vested  or  certain."    See  4  Birdseye's  Consol. 

contingent.    It  is  vested  when  there  Laws  (1909)  4935. 
is  a  person  in  being,  who  would 
have  an   immediate   right   to   the 


84 


THE   RULE   AGAINST   PERPETUITIES. 


law; l  but  the  courts  have  decided,  and  it  would  seem  cor- 
rectly, that  it  has  done  so.2    And  it  is  conceived  that  the 


1  Chancellor  Kent  says  this  defi- 
nition "appears  to  be  accurately 
and  fully  expressed."  4  Kent,  Com. 
202.  On  Chancellor  Kent's  au- 
thority the  Supreme  Court  of  Ala- 
bama said  that  if  a  devise  is  made 
to  a  woman  for  life,  and  on  her 
death  to  her  children  then  living, 
the  children  take  a  vested  re- 
mainder; but  the  decision  would, 
it  seems,  have  been  the  same  had 
the  remainder  been  held  contin- 
gent. Kumpe  v.  Coons,  63  Ala. 
448.  See  Gindrat  v.  Western  R. 
96  Ala.  162.  But  in  Smaw  v. 
Young,  109  Ala.  528,  the  Court 
acknowledged  that  in  Kumpe  v. 
Coons  they  had  been  misled  by 
Chancellor  Kent,  and  that  the  de- 
cision could  not  be  sustained  on 
principle,  although  a  majority  of 
the  Court  thought  it  must  be  fol- 
lowed as  having  settled  a  rule  of 
property.  But  the  common-law 
definition  of  a  contingent  remainder 
has  now  been  restored  by  Ala. 
Code  of  1907,  §  3401.  See  Lyons 
v.  Bradley,  168  Ala.  505,  513.  The 
Supreme  Court  of  New  Hampshire 
adopted  view  (2)  in  Cole  v.  Society, 
64  N.  H.  445,  457,  458;  but  see 
Hayward  v.  Spaulding,  75  N.  H.  92, 
and  Dana  v .  Sanborn,  70  N.  H.  152. 
So  the  Supreme  Court  of  Vermont 
in  Wheeler  v.  St.  Johnsbury,  87  Atl. 
Rep.  349;  and  the  Supreme  Court 
of  Indiana  in  Wood  v.  Robertson, 
113  Ind.  323.  The  Supreme  Court 
of  Illinois  adopted  definition  (2)  in 
some  cases  (see  Kales,  Fut.  Int. 
in  111.  §§  94-113),  but  these  cases 
have  been  overruled  by  Golla- 
day  v.  Knock,  235  111.  412;  but 


see  Mettler  v.  Warner,  243  111. 
600.  Chancellor  Kent  was  also 
followed  into  the  same  error  by 
Mr.  Justice  Swayne  in  Croxall  v. 
Shererd,  5  Wall.  268,  288,  a  case  in 
which  land  is  said  to  have  been 
"settled  in  apparently  some  sort  of 
tail;"  but  where  a  contrary  ruling 
would  not  have  affected  the  de- 
cision. P.  290.  This  definition 
(2)  is  approved  in  Iowa,  Archer  v. 
Jacobs,  125  Iowa,  467,  475;  Shafer 
v.  Tereso,  133  Iowa,  342.  Cf.  In  re 
Haslett,  116  Fed.  Rep.  680;  Starnes 
v.  Hill,  112  N.  C.  1,  12,  13;  Forsythe 
v.  Lansing,  109  Ky.  518.  The  case 
of  Farnam  v.  Farnam,  53  Conn. 
261,  would  seem,  at  first  view,  to 
have  been  decided  on  this  theory; 
but  in  a  later  case  in  the  same 
volume,  Andrews  v.  Rice,  Id.  566, 
there  was  a  gift  by  will  to  trustees 
in  trust  to  pay  the  income  to  the 
testator's  daughter  for  life,  and 
on  her  death  to  divide  the  princi- 
pal into  as  many  equal  shares  as 
the  testator  might  have  grandchil- 
dren or  their  issue  then  living,  the 
issue  of  any  deceased  grandchild  to 
be  counted  as  one  share,  and  the 
testator  gave  a  share  to  each  of 
said  grandchildren,  and  a  share  to 
the  issue  then  surviving  of  each  de- 
ceased grandchild,  and  it  was  held 
that  the  grandchildren  had  a  con- 
tingent interest.  The  decision  in 
Farnam  v.  Farnam  must  therefore 
be  considered  as  turning  upon  the 
special  terms  of  the  will  in  that 
case. 

1  See  Lawrence  v.  Bayard,  7 
Paige,  70;  Coster  v.  Lorillard,  14 
Wend.  265,  301,  302;  Mead  v. 


VESTED   AND   CONTINGENT   INTERESTS. 


85 


adoption  of  this  view  necessitates  the  decisions  of  the  Court 
of  Appeals,  which  at  first  appear  rather  startling,  that  since 
the  abolition  of  the  Rule  in  Shelley's  Case  a  remainder  to 
heirs,  after  a  life  estate  to  the  ancestor,  is  vested.1 

§  108.  (3)  Neither  of  these  views  is  that  of  the  common 
law.  Whether  a  remainder  is  vested  or  contingent  depends 
upon  the  language  employed.  If  the  conditional  element  is 
incorporated  into  the  description  of,  or  into  the  gift  to  the 
remainder-man,  then  the  remainder  is  contingent;  but  if, 
after  words  giving  a  vested  interest,  a  clause  is  added  divest- 
ing it,  the  remainder  is  vested.  Thus  on  a  devise  to  A.  for 
life,  remainder  to  his  children,  but  if  any  child  dies  in  the 
lifetime  of  A.  his  share  to  go  to  those  who  survive,  the  share 


Mitchell,  17  N.  Y.  210,  213;  Con- 
nelly v.  O'Brien,  166  N.  Y.  406; 
Stringer  v.  Young,  191  N.  Y.  157; 
Trowbridge  v.  Coss,  126  N.  Y.  Ap. 
D.  679;  195  N.  Y.  596;  Doscher  v. 
Wyckoff,  132  N.  Y.  Ap.  D.  139. 

1  Sheridan  v.  House,  4  Keyes, 
569;  4  Abb.  Ct.  Ap.  218.  Moore 
v.  Littel,  41  N.  Y.  66,  reversing  40 
Barb.  488.  House  v.  Jackson,  50 
N.  Y.  161.  See  also  Rome  Bank 
v.  Eames,  4  Abb.  Ct.  Ap.  83,  98; 
Chisra  v.  Keith,  1  Hun,  589;  Drake 
v.  Lawrence,  19  Hun,  112;  Matter 
of  Brown,  29  Hun,  412;  Lockman 
v.  Reilley,  Id.  434;  Ramsay  v.  De 
Reiner,  65  Hun,  212.  But  see  Hen- 
nessy  v.  Patterson,  85  N.  Y.  91, 
104;  Carmichael  v.  Cannichael,  4 
Keyes,  346;  1  Abb.  Ct.  Ap.  309; 
and  6  Alb.  L.  J.  361.  Cf.  Purdy  v. 
Hayt,  92  N.  Y.  446,  454,  456;  Hall 
v.  La  France  Engine  Co.,  158  N.  Y. 
570;  Richards  v.  Hartshorne,  110 
N.  Y.  Ap.  D.  650;  Matter  of 
Wilcox,  194  N.  Y.  288.  Mr. 
Stewart  Chaplin,  in  his  treatise  on 
Suspension  of  Alienation,  §§  28-52, 
argues  against  the  view  that  the 


Revised  Statutes  changed  the  com- 
mon law  on  vesting,  and  cf.  6 
Columbia  L.  T.  96;  1  Columbia  Law 
Rev.  279;  9  Columbia  Law  Rev. 
587,  687.  The  New  York  Statute 
has  been  copied  in  Michigan,  3 
Comp.  Laws,  §  8795;  see  Porter 
t>.  Osmun,  135  Mich.  361;  and  in 
Wisconsin,  Annotated  Stat.  (1898), 
§  2037.  See  Scott  v.  West,  63  Wis. 
529;  In  re  Moran's  Will,  118  Wis. 
177;  in  which  last  case  the  distinc- 
tion between  the  statutory  defini- 
tion and  the  common-law  concep- 
tion of  a  contingent  remainder  is 
pointed  out;  and  McMichael  v. 
Peterman,  140  Wis.  589.  Cf.  Los 
Angeles  County  v.  Winans,  13  Cal. 
Ap.  234. 

Cf.  also  Den.  d.  Hopper  v.  De- 
marest,  1  Zabr.  525;  2  Zabr.  599; 
under  a  statute,  construing  a  re- 
mainder to  heirs  after  a  life  estate 
to  A.  as  a  remainder  to  A.'s  chil- 
dren; Croxall  v.  Shererd,  5  Wall. 
268,  288;  Fields  v.  Lewis,  118  Ga. 
573;  Kales,  Fut.  Int.  in  111.  §§  271- 
273;  1  111.  Law  Rev.  323. 


86 


THE   RULE  AGAINST  PERPETUITIES. 


of  each  child  is  vested,  subject  to  be  divested  by  its  death.1 
But  on  a  devise  to  A.  for  life,  remainder  to  such  of  his  children1 
as  survive  him,  the  remainder  is  contingent.2 


1  Littlejohns   t>.    Household,   21 
Beav.  29.     Thaw  v.  Ritchie,   136 
U.  S.  519,  546.    Parker  v.  Ross,  69 
N.    H.   213.     Blanchard    «;.    Blan- 
chard,  1  Allen,  223.    Lenz  v.  Pres- 
cott,  144  Mass.  505.    (See  Gibbens 
t>.  Gibbens,  140  Mass.  102.)    Car- 
penter  v.   Perkins,    83   Conn.    11. 
In  re  Rogers'  Trust  Estate,  97  Md. 
674.     Walker  v.  Alverson,  87  So. 
Car.  55.     Jeefers  v.  Lampson,   10 
Ohio   St.    101.     Moores   v.   Hare, 
144Ind.573.    (See  Wood  v.  Robert- 
son,   113    Ind.    323.)      Ducker   v. 
Burnham,   146  111.  9.     Hinrichsen 
v.  Hinrichsen,  172  111.  462.    Mettler 
v.  Warner,  243  111.  600.     L'Etour- 
neau  v.  Henquenet,  89  Mich.  428. 
Callison  v.  Morris,  123  Iowa,  297. 
Mercantile  Bank  v.  Ballard,  83  Ky. 
481.    Forsythe  v.  Lansing,  109  Ky. 
518.     See  Den  d.  Hopper  v.  De- 
marest,  1  Zabr.  525;  2  Zabr.  599; 
Clark  t;.  Cox,  115  N.  C.  93. 

2  Doe  d.  Planner  v.  Scudamore, 
2  B.  &  P.  289.     Whitby  v.  Von 
Luedecke,  [1906]  1  Ch.  783.    Robin- 
son v.  Palmer,  90  Me.  246.     (See 
Spear  v.  Fogg,  87  Me.  132.)    Olney 
v.   Hull,   21   Pick.   311.     Nash  v. 
Nash,  12  Allen,  345.    Thomson  v. 
Ludington,  104  Mass.  193.    Brown 
v.  Williams,  5  R.  I.  309.    Alverson 
v.  Randall,  13  R.  I.  71.    R.  I.  Hosp. 
Trust  Co.  v.  Harris,  20  R.  I.  408. 
Andrews   v.   Rice,   53   Conn.    566. 
Van    Tilburgh    v.    Hollinshead,    1 
McCart.    32.      Delbert's    Appeal, 
83  Pa.  462.     List  v.  Rodney,  Id. 
483.      Mergenthaler's    Appeal,    15 
W.  N.  C.  (Pa.)  441.    Coggin's  App. 
124  Pa.  10.    Craige's  App.  126  Pa. 


223.  Raleigh's  Estate,  206  Pa.  451. 
Vashon  v.  Vashon,  88  Va.  170. 
Howbert  v.  Cawthorn,  100  Va.  649. 
Allison  v.  Allison,  101  Va.  537. 
Whitesides  v.  Cooper,  115  N.  C. 
570.  (See  Bowen  v.  Hackney,  136 
N.  C.  187,  200.)  Faber  v.  Police, 
10  So.  Car.  376.  McElwee  v. 
Wheeler,  Id.  392.  Bouknight  ». 
Brown,  16  So.  Car.  155.  Stephens 
v.  Evans,  30  Ind.  39.  Golladay  v. 
Knock,  235  111.  412  (see  §  107, 
note,  ante).  Johnson  v.  Jacob,  11 
Bush,  646.  Emison  v.  Whittlesey, 
55  Mo.  254.  De  Lassus  v.  Gate- 
wood,  71  Mo.  371.  Buxton  v. 
Kroeger,  219  Mo.  224.  Los  Angeles 
County  v.  Winans,  13  Cal.  Ap.  234. 
Hall  v.  Wright,  17  Cal.  Ap.  502. 
D'Abbadie  v.  Bizoin,  Ir.  R.  5  Eq. 
205,  210.  4  Kent,  Com.  (12th  ed.) 
203,  note  1.  Wms.  Real  Prop. 
(22d  ed.)  365.  Cf.  Sulley  v.  Barber, 
59  L.  T.  R.  824. 

Mr.  Williams's  definition  of  a 
vested  remainder  is  an  estate 
"which  is  always  ready,  from  its 
commencement  to  its  end,  to  come 
into  possession  the  moment  the 
prior  estates,  be  they  what  they 
may,  happen  to  determine."  Judge 
Holmes,  in  his  note  to  Kent's 
Commentaries,  loc.  cit.,  criticises 
this  definition  of  Mr.  Williams  as 
if  it  was  equivalent  to  that  con- 
tained in  the  New  York  Revised 
Statutes,  and  common  in  text- 
books, which  declares,  in  sub- 
stance, that  a  remainder  is  vested 
at  any  moment,  if  at  that  moment 
there  is  a  remainder-man  ready  to 
take  possession  should  the  particu- 


VESTED  AND   CONTINGENT  INTERESTS. 


87 


§  109.  There  are  three  kinds  of  vested  remainders  which 
call  for  a  word  of  special  mention:  (1)  Remainders  to  a 
class.  (2)  Remainders  after  estates  tail.  (3)  Remainders  in 
default  of  appointment. 

§  110.  (1)  Remainders  to  a  Class.1  —  Sometimes  a  re- 
mainder is  given  to  a  class  of  persons,  e.  g.  to  children,  the 
number  of  members  in  which  may  be  increased  between  the 
time  of  creating  the  remainder  and  the  termination  of  the  par- 
ticular estate;  for  instance,  on  a  devise  to  A.  for  life,  remainder 
to  the  children  of  A.  and  their  heirs  as  tenants  hi  common. 
Here,  although  it  is  certain  that  each  child  born,  or  its  heirs, 
will  have  a  share  hi  the  estate,  that  share  will  be  diminished 
by  the  birth  of  every  other  child  of  A.  Each  child,  never- 
theless, on  its  birth  is  said  to  have  a  vested  remainder.  The 


lar  estate  then  determine,  although, 
should  that  estate  determine  at  an- 
other time,  some  other  remainder- 
man might  be  entitled  to  the  same 
remainder.  Judge  Holmes  shows 
clearly  the  unsoundness  of  this 
definition.  But  is  this  Mr.  Wil- 
liams's  definition?  His  meaning 
would  rather  seem  to  be  the  cor- 
rect one,  that  a  remainder  is  vested 
in  a  man  if  he  is  ready  and  entitled 
during  the  continuance  of  the  re- 
mainder to  take  the  land  whenever 
and  however  the  preceding  estate 
determines. 

The  ambiguity  and  error  in  the 
definition  of  vested  remainders  have 
arisen  in  part  from  considering 
them  abstracted  from  the  persons 
to  whom  they  belong.  A  vested  re- 
mainder is,  ex  vi  termini,  vested  in 
somebody,  and  if  the  subject  is  ap- 
proached from  the  side  of  the  re- 
mainder-man, some  of  the  difficulty 
disappears. 

In  the  simple  typical  cases  given 
in  the  text  it  is  easy  to  apply  the 
rule  of  the  common  law,  but  as 


the  vesting  or  contingency  of  a 
limitation  depends  upon  the  lan- 
guage employed,  the  determination 
whether  it  is  vested  or  contingent 
is  a  matter,  often  a  difficult  matter, 
of  construction;  but  as  such  it  has 
no  place  in  this  treatise,  which 
does  not  profess  to  deal  with  ques- 
tions of  construction.  The  fullest 
statement  of  the  English  cases  is 
in  2  Jarm.  Wills  (6th  ed.)  1352  et 
seq.  See  also  Theobald  on  Wills 
(7th  ed.)  566  et  seq.,  and  Hawkins 
on  Wills  (2d  ed.)  237-242,  283-290. 
In  1  Tiffany,  Real  Prop.  §§  120- 
122,  141-144,  there  is  an  excellent 
statement  of  the  law  and  an  accur- 
ate citation  of  many  American  cases 
in  point. 

1  A  class  is  a  number  of  persons 
having  a  common  characteristic. 
By  a  gift  to  a  class  is  meant  a  gift 
to  persons,  the  share  of  each  of 
whom  is  determined  by  the  num- 
ber of  the  class  to  which  he 
belongs. 


88  THE  BULB   AGAINST  PERPETUITIES. 

remainder  is  said  to  "open"  and  let  in  the  after-born  children.1 
So  when  the  remainder  is  to  an  individual  and  a  class,  as 
to  A.  and  the  children  of  B.2 

§  110  a.  The  placing  this  class  of  remainders  under  the 
head  of  vested  remainders  is  to  some  extent  artificial.  Such 
a  remainder  is  vested,  in  so  far  as  it  is  certain  that  whenever 
and  however  the  preceding  estate  determines  there  will  be  one 
or  more  persons  who  will  surely  come  into  possession  of  the 
land,  but  in  so  far  as  it  is  not  certain  what  the  number  of 
those  persons  will  be,  or  in  other  words  as  the  number  and 
consequent  size  of  the  shares  is  contingent,  the  remainder 
cannot  be  truly  said  to  be  in  all  respects  vested.  The  imper- 
fect character  of  the  vesting  in  this  class  of  cases  is  brought 
out  by  the  application  of  the  Rule  against  Perpetuities.  In- 
terests which  are  truly  and  in  all  respects  vested,  never  come 
within  the  Rule,  but  when  there  is  a  gift  in  remainder  to  a 
class  which  has  become  vested  in  a  living  person,  if  the  number 
of  persons  who  will  finally  constitute  the  class  may  not  be 
determined  until  a  remote  period,  the  remainder  is  void. 
For  instance,  suppose  a  devise  to  A.  for  life,  remainder  to  his 
eldest  son  (unborn)  for  life,  remainder  to  the  grandchildren  of 

B.  B.  is  living  and  has  had  one  grandchild,  C.,  born  to  him. 

C.  is  said  to  have  a  vested  remainder,  but  as  the  number  of  the 
grandchildren  in  whom  the  remainder  is  ultimately  to  vest 
in  possession,  and  consequently  the  size  of  the  shares,  cannot  be 

1  Doe  d.  Comberbach  v.  Perryn,  McArthur  v.  Scott,  113  U.  S.  340, 
3  T.  R.  484,  494,  495.  Carver  380;  Minot  v.  Purrington,  190 
v.  Jackson,  4  Pet.  1,  90.  Pingrey  Mass.  336;  Latta  v.  Lowry,  11  Ont. 
v.  Rulon,  246  111.  109.  Thomas  v.  517.  In  Tennessee,  by  the  local 
Thomas,  247  111.  543.  Archer  v.  law,  which  it  is  admitted  is  con- 
Jacobs,  125  Iowa,  467.  Fearne,  trary  to  the  common  law,  a  re- 
C.  R.  312-314,  Butler's  note  (e).  mainder  to  a  class  does  not  vest 
2  Jann.  Wills  (6th  ed.)  1667.  See  in  the  living  members  of  the  class. 
A.  G.  v.  Crispin,  1  Bro.  C.  C.  386;  Sanders  v.  Byrom,  112  Tenn.  472. 
Devisme  v.  Mello,  Id.  537;  Lee  v.  This  makes  the  remainder  contin- 
Lee,  1  Dr.  &  Sm.  85,  86;  Baldwin  gent. 

t>.  Rogers,  3  De  G.  M.  &  G.  649,  *  See  Cooke  v.  Bowen,  4  Y.  & 

656,   657;   Browne  t>.   Hammond,  C.  244. 
H.  R.  V.  Johns.  210,  212,  note  (a); 


VESTED   AND    CONTINGENT  INTERESTS.  89 

determined  till  too  remote  a  period,  the  whole  devise  to  the 
grandchildren  is  invalid  as  too  remote.  This  is  apparently 
an  exception  to  the  rule  that  vested  interests  are  never  too 
remote,  but  in  truth  remainders  of  this  sort,  although  called 
vested,  are  not  really  so;  at  a  certain  point,  and  on  the  point 
which  the  Rule  against  Perpetuities  touches,  they  are,  in  fact, 
contingent.1 

§  111.  (2)  Remainders  after  Estates  Tail.  —  On  the  passage 
of  the  Statute  De  Donis2  remainders  after  estates  tail  took  effect 
whenever  and  however  the  particular  estates  determined,  and 
were  therefore  vested.  But  hi  the  course  of  time,  when,  by  re- 
coveries or  fines,  estates  tail  and  the  remainders  dependent  on 
them  could  be  barred,  a  remainder  after  an  estate  tail  was  not 
only  postponed  until  the  failure  of  the  issue  of  the  tenant  in  tail, 
but  also  became  dependent  on  the  contingency  of  the  tenant  in 
tail  not  suffering  a  recovery  or  levying  a  fine.  The  remainder, 
however,  is  still  deemed  vested.  The  barring  of  the  estates  by 
the  tenant  in  tail  is  considered  as  in  the  nature  of  a  condition 
subsequent  divesting  the  whole  series  of  estates,  as  well  the 
particular  estate  tail  as  all  the  subsequent  remainders.3 

§  112.   (3)   Remainders   in    Default    of    Appointment.  —  If 

1  See     §§    205  a,     205  b,    post.  and  to  substitute  "not  subject  to 

The  reason  why  a  remainder  to  a  a    condition   precedent;"   but  the 

class    which    might    increase    was  usage  is  so  fixed  that  it  seems  best 

called  "vested"  was  undoubtedly,  not  to  depart  from  it,  but  to  show 

as  suggested  to  the  author  by  his  that   such   a   remainder,   notwith- 

learned  friend,  Roland  R.  Foulke,  standing  its   name,   is   subject   to 

Esq.,  because  "vested"  had  origi-  the  Rule  against  Perpetuities.    See 

nally  no  reference  to  the  absence  §§201,  205  a,  post. 
of  contingency,  but  only  to  seisin,  2  St.  Westm.  II.  13  Edw.  I.  c.  1 

and   when   there    was    a    remain-  (1285). 

der-man  in  esse,  the  requirements  *  Mr.   Josiah   W.  Smith  in  his 

of    seisin    were    satisfied.     When  treatise    on    Executory    Interests, 

"vested"  came  to  be  opposed  to  §  192,  says  that  a  remainder  after 

"contingent,"  its  application  to  a  an  estate  tail  is  vested  because  a 

remainder  to  an  increasable  class  failure  of  issue  "is  considered  cer- 

was    inappropriate.      If    we    were  tain  to  happen  some  time  or  other;" 

making  a  new  Rule  against  Per-  it   is   submitted   that   the   reason 

petuities  it  might  be  well  to  dis-  given  in  the  text  is  the  sounder, 

use  the  term  "vested"  altogether  Hawkins,  Wills  (2d  ed.)  265. 


90 


THE   RULE  AGAINST  PERPETUITIES. 


in  a  settlement  or  will  a  power  to  appoint  is  given,  and  a 
remainder  limited  in  default  of  appointment,  the  remainder 
is  not  rendered  contingent  by  the  fact  that  the  execution  of 
the  power  may  destroy  it.1  When  the  remainder  would  be 


1  Cunningham  v.  Moody,  1  Ves. 
ST.  174, 177.  Doe  d.  Willis  v.  Martin, 
4  T.  R.  39.  Doe  d.  Tanner  v.  Dor- 
veil,  5  T.  R.  518.  Woodman  v. 
Woodman,  89  Me.  128.  Grosvenor 
v.  Bowen,  15  R.  I.  549.  Bonnell  v. 
Bonnell,  47  N.  J.  Eq.  540.  Lantz 
v.  Massie,  99  Va.  709.  Williman  v. 
Holmes,  4  Rich.  Eq.  475.  Heil- 
man  v.  Heilman,  129  Ind.  59. 
Railsback  v.  Lovejoy,  116  111.  442. 
Ducker  v.  Burnham,  146  111.  9. 
Harvard  College  v.  Balch,  171  111. 
275.  Kirkpatrick  v.  Kirkpatrick, 
197  111.  144.  Burke  v.  Burke,  259 
111.  262.  Osbrey  v.  Bury,  1  Ball  & 
B.  53.  Heron  v.  Stokes,  2  Dr.  & 
W.  89,  99,  100.  Fearne,  C.  R.  226- 
229.  Sugd.  Pow.  (8th  ed.)  452, 
453.  Leonard  Lovie's  Case,  10  Co. 
78  a,  85  a,  contra,  is  overruled.  See 
Walpole  v.  Conway,  Barnard.  Ch. 
153,  157;  Smith  v.  Camelford,  2 
Ves.  Jr.  698.  Cf.  §§  258,  535,  post. 
In  Johnson  v.  Battelle,  125  Mass. 
453,  454,  a  remainder  after  a  power 
is  said  to  be  "contingent  on  its  not 
becoming  necessary  to  exercise  that 
power,"  and  in  Taft  v.  Taft,  130 
Mass.  461,  464,  465,  where  the  life 
tenant  had  a  power  to  appoint  by 
deed  or  will  it  is  said  that  "the  gift 
of  the  remainder  to  the  plaintiffs 
is  contingent  upon  the  event  that 
some  estate  remains  at  the  death 
of  the  defendant  not  disposed  of 
by  her  will.  They  thus  take  con- 
tingent remainders;"  but  these 
remarks  were  dicta  entirely  unnec- 
essary to  the  decision  of  the  cases; 
the  attention  of  the  Court  appar- 


ently was  not  called  to  the  ques- 
tion whether  the  remainders  were 
vested  or  contingent;  and  it  seems 
hardly  likely  that  the  Massachusetts 
court,  if  the  point  is  presented  for 
decision,  will  hold  contrary  to  the 
whole  course  of  modern  authority. 

In  Minot  v.  Treasurer,  207  Mass. 
588,  a  statute  passed  in  1909  de- 
clared that  where  the  donee  of  a 
power  omitted  to  exercise  it,  a 
disposition  of  property  should  be 
deemed  to  take  place  as  though 
the  persons  becoming  entitled  to 
the  possession  of  such  property 
had  succeeded  thereto  by  a  will 
of  the  donee  taking  effect  at  the 
time  of  such  omission,  and  should 
be  subject  to  a  succession  tax. 
By  a  deed  of  1844,  N.  had  a  life 
estate  with  power  of  appointment. 
N.  died  after  the  passage  of  the 
Statute,  without  exercising  the  power. 
It  was  held  that  the  imposition  of  a 
succession  tax  on  the  property  pass- 
ing to  the  persons  taking  on  default 
of  appointment  was  not  an  uncon- 
stitutional violation  of  their  vested 
rights.  This  refers  to  the  vested 
rights  mentioned  in  §  118,  note, 
post,  and  has  no  reference  to  the 
question  whether  their  interests 
were  vested  or  contingent  as  those 
terms  are  used  in  the  matter  men- 
tioned here. 

See  Moore  v.  Weaver,  16  Gray, 
305.  Welsh  v.  Woodbury,  144  Mass. 
542,  545;  Peabody  v.  Tyszkiewicz, 
191  Mass.  317;  Lawrence  v.  Beards- 
ley,  74  Conn.  1.  But  cf.  Spaan  v. 
Anderson,  115  Iowa,  121. 


VESTED  AND   CONTINGENT  INTERESTS.  91 

contingent  in  the  absence  of  the  power,  of  course  the  presence 
of  the  power  does  not  render  it  vested.1 

§  112  a.  That  the  existence  of  a  power  does  not  make  a 
remainder  in  default  of  appointment  contingent  seems  to 
be  settled  law  everywhere  (unless  Massachusetts  be  an 
exception).2 

§113.  Reversions. — All  reversions  are  vested  interests. 
From  their  nature  they  are  always  ready  to  take  effect  hi 
possession  whenever  and  however  the  preceding  estates  de- 
termine.3 

§  113  o.  When  a  reversion  is  assigned,  it  continues  to  be  a 
vested  interest  with  the  assignee.  In  this  way  must  be  ex- 
plained the  case  of  Egerton  v.  Massey.*  A  testatrix  devised 
land  to  A.  for  life,  remainder  to  the  children  of  A.  and  their 
issue  living  at  A.'s  death,  and  in  default  of  such  issue  to  B. 
in  fee;  and  she  gave  the  residue  of  her  estate  to  A.  A.  con- 
veyed all  her  estate  in  the  land  to  J.,  and  died  without  ever 
having  been  married.  It  was  held  that,  on  the  conveyance 
to  J.,  A.'s  life  estate  merged  hi  her  residuary  interest,  and 
that  the  contingent  remainder  to  B.  was  destroyed.  There 
was  here  a  life  estate,  and  a  contingent  remainder  with  a 

1  See  an  article  by  the  author,      the  power  are  of  estates  less  than 
25    Harv.    Law   Rev.    22   et   seq.,      a  fee,  it  will  vest  subject  to  the 
commenting  on  Woodcock  v.  Ren-      estates  well  appointed. 

neck,  4  Beav.  190;  1  Phil.  72;  and  3  Where  possibilities  of  re- 
Lambert  v.  Thwaites,  L.  R.  2  Eq.  verter  are  allowed,  as  to  which  see 
151.  §§  31  et  seq.,  ante,  they  are  vested 

2  See  note  1  to  preceding  page.  interests. 

As  an  original  question,  this  is  very  4  3  C.  B.  N.  s.  338.  A  similar 
doubtful,  but  on  the  matter  of  re-  point  arose  in  Craig  v.  Warner,  5 
moteness,  it  is  immaterial  whether  Mackey,  460;  Bond  v.  Moore,  236 
the  remainder  is  vested  or  contin-  111.  576;  Barr  v.  Gardner,  259  111. 
gent.  For  assuming,  as  we  do,  that  256;  Belding  v.  Parsons,  258  III. 
it  would  be  vested  in  the  absence  of  422;  Archer  v.  Jacobs,  125  Iowa, 
the  power,  it  will  either  (1)  if  the  467;  Bennett  v.  Morris,  5  Rawle,  9. 
power  is  not  exercised,  vest  within  See  McCreary  v.  Coggeshall,  74  So. 
the  required  limits,  or  (2)  if  the  Car.  42;  Cavaher  v.  Lloyd,  2  Corn- 
appointment  under  the  power  is  in  monwealth  L.  R.  (Australia)  480, 
fee,  it  will  be  excluded  altogether,  508;  4  111.  Law  Rev.  355. 
or  (3)  if  the  appointments  under 


92  THE  RULE  AGAINST  PERPETUITIES. 

double  aspect.  If  A.  left  issue  at  her  death,  the  issue  would 
take;  if  she  did  not  leave  issue  at  her  death,  then  B.  would 
take.  Although  these  contingencies  included  every  possi- 
bility, for  A.  must  die  either  with  or  without  leaving  issue 
at  her  death,  yet  until  the  fee  vested  either  in  the  issue  or  in 
B.,  it  would,  had  there  been  no  residuary  gift,  have  remained 
in  the  heir  of  the  testatrix  as  a  reversion.1  This  reversion 
would  have  been  destroyed  by  the  condition  subsequent  of 
A.'s  dying  leaving  issue,  and  also  by  the  condition  subse- 
quent of  A.'s  dying  without  leaving  issue;  but  until  the  one 
or  the  other  of  these  conditions  happened  the  reversion  would 
have  remained  a  vested  interest  in  the  heir.  Such  would  have 
been  the  case  had  there  been  no  gift  of  the  residue.  How  did 
such  gift  affect  the  question?  Four  different  views  have  been 
taken  of  such  a  case.  (1)  The  gift  of  the  fee  contained  in  the 
residue  has  most  of  the  characteristics  of  a  remainder.  It  is  a 
future  estate,  taking  effect,  if  at  all,  at  the  termination  of  the 
particular  estate  and  created  by  the  same  instrument.2  But 
this  residuary  devise  cannot  be  a  vested  remainder,  for  there 
cannot  be  a  vested  remainder  after  a  contingent  remainder  in 
fee.3  (2)  To  obviate  the  difficulty  in  such  a  case  of  having  a 
vested  remainder  after  contingent  remainders  hi  fee,  Mr.  Pres- 
ton suggested  that  such  prior  estates  might  be,  not  contingent 
remainders,  but  executory  devises.4  Egerton  v.  Massey,  how- 
ever, negatives  such  a  theory,  for  these  prior  estates  were 

1  See  §  11,  ante.  *  Loddington  v.  Kime,  1   Salk. 

1  It  seems  immaterial  that  the  224;  1  Ld.  Raym.  203;  3  Lev.  431. 

residuary  clause  passes  other  prop-  (See  Doe  d.   Brown  v.  Holme,  3 

erty.    A  gift  of  the  residue  of  the  Wils.  237,  240;  Shaw  v.  Weigh,  2 

testator's  real  estate  was  specific,  Stra.  798,  804.)    Doe  d.  Oilman  v. 

not  only  before  the  Wills  Act  of  Elvey,  4  East,  313.    Fearne,  C.  R. 

1837  (the  will  passed  upon  in  Eger-  225.     But   see  Hayes,   Limit.  81 

ton  v.  Massey  was  made  in  1786),  et    seq.;    Leake,   Land   Law,   338, 

but  is  so  even  since  that  act.   Hens-  note   (d). 

man  t>.  Fryer,  L.  R.   3   Ch.  420.  *  1  Prest.  Est.  84,  502;  and  see 

Lancefield  v.  Iggulden,  L.  R.   10  4  Jur.  N.  s.  pt.  2,  108,  121,  133, 

Ch.  136.    See  1  Prest.  Est.  502;  2  157. 
Prest.  Abs.  99. 


VESTED   AND    CONTINGENT   INTERESTS.  93 

held  in  that  case  to  have  been  destroyed,  which  could  not 
have  happened  had  they  been  executory  devises.  (3)  Again, 
it  has  been  suggested  that  the  interest  of  an  heir  after  the 
devise  of  a  contingent  fee  will  not  pass  by  a  devise,  either 
specific  or  residuary.1  But  this,  too,  is  negatived  by  Egerton 
v.  Massey.  (4)  The  true  view  would  seem  to  be  that  although 
a  residuary  devise  is  made  by  the  same  instrument  which 
creates  a  particular  estate,  it  is  not  part  of  one  gift  with  it, 
and  is  therefore  not  a  remainder.  The  gift  of  a  "residue" 
implies  that  the  former  gift  is  completed.  If  Stiles  grants  a 
life  estate  to  Doe,  and  afterwards  conveys  the  residue  of  the 
estate  to  Roe,  Roe  has  a  grant  of  a  reversion,  and  not  a 
remainder;  and  although  hi  a  will  the  residuary  gift  is  con- 
tained in  the  same  instrument  as  the  particular  devise,  yet  the 
effect  of  the  whole  is  to  be  regarded  as  the  establishment  of  a 
particular  estate  with  a  reversion,  and  an  independent  transfer 
of  that  reversion,  so  established,  to  the  residuary  devisee.2 
It  is  noticeable  that  the  judges  hi  Egerton  v.  Massey  always 
speak  of  the  vested  interest  in  which  the  life  estate  merged 
as  a  reversion  and  not  as  a  remainder.3 

§  113  6.  When  an  estate  is  given  on  a  condition,  the  condi- 
tion is  always  both  precedent  and  subsequent;  it  is  precedent 
as  to  the  estate  which  is  given  on  the  condition,  it  is  subsequent 
as  to  the  estate  which  now  exists  and  will  continue  to  exist 
if  the  condition  is  not  fulfilled.  The  vesting  of  an  estate  is  not 
affected  by  the  fact  that  it  may  be  divested  by  a  condition  sub- 
sequent. In  Egerton  v.  Massey,  as  far  as  the  condition  affected 
the  reversion  it  was  not  a  condition  precedent,  but  a  condition 
subsequent,  and,  therefore,  the  case  of  Egerton  v.  Massey  and 
the  statement  hi  §  113,  ante,  that  all  reversions  are  vested,  is,  it 
is  submitted,  correct.  There  cannot  be  a  vested  remainder  after 
a  contingent  remainder  in  fee  simple.4  Why  is  it  that  after  a 
contingent  remainder  hi  fee  simple  the  reversion  is  vested,  but 

1  9  Jur.  pt.  2,  50.  *  See   Johnson   v.  Edmond,  65 

2  See  9  Jur.  pt.  2,  50,  52.      Cf.      Conn.  492,  499. 

28  Am.  Jur.  388.  4  Loddington   v.  Kime,   1  Salk. 

224;  1  Ld.  Raym.  203;  3  Lev.  431. 


94  THE   RULE  AGAINST  PERPETUITIES. 

a  remainder  is  contingent  ?  The  reason  is  this.  A  remainder  is 
created  by  the  livery  of  seisin  of  the  particular  estate;  if  it  is 
not  ready  to  come  into  possession  whenever  and  however  the 
previous  estates  determine,  it  is  a  contingent  remainder.  A 
contingent  remainder  is,  in  truth,  not  an  estate,  but  a  pos- 
sibility of  an  estate; l  its  becoming  an  estate  depends  upon 
the  condition  precedent  of  the  first  contingent  fee  simple 
limited  not  vesting;  while  a  reversion  is  independent  of  the 
ownership  created  by  the  livery,  it  is  an  actual  estate,  and, 
therefore,  any  condition  affecting  it  is  a  condition  which,  as  to 
it,  is  subsequent. 

§114.  Other  Future  Interests  in  Real  Estate.  —  No  other 
future  interests  are  vested.  An  interest  to  commence  at  a 
future  time  certain,  e.  g.  an  executory  devise  to  go  into  effect 
ten  years  after  the  testator's  death,  cannot  be  called  contin- 
gent; but  neither  is  it  vested.  It  is  an  executory  limitation.2 
Thus:  (1)  Rights  to  enter  for  condition  broken  are  not  vested 
till  breach  of  the  condition.  (2)  Rights  less  than  ownership 
in  land  of  others  to  begin  in  futuro  are  not  vested  interests 
until  they  begin.3  (3)  Springing  and  shifting  uses  and  (4) 
Executory  devises  are  not  vested  interests  until  they  take 
effect  in  possession  or  are  turned  into  vested  remainders.4 

§115.  Escheat.  —  An  exception  to  the  statement  at  the 
beginning  of  the  preceding  section  is  the  right  to  take  by 
escheat.  If  this  is  a  right  at  all,  and  it  would  certainly  seem 
to  be,  it  is  a  vested  right.5 

1  See  §  100,  note,  ante.  if  he  dies  unmarried,  then  to  B.  for 

1  Fearne,  C.  R.  1,  Butler's  note.  life,  and  on  B.'s  death  to  C.  in  fee. 

s  Of    course,  after  a  right  less  Here  B.  and  C.  have  both  execu- 

than  ownership  has  begun,   there  tory  devises;  but  on  A.'s  death, 

may  be  a  vested  future  estate  in  it.  unmarried,    B.'s   estate   is   turned 

See  Challis,   Real   Prop.    (3d  ed.)  into  an  estate  in  possession,   and 

51,  327;  Wins.  Real  Prop.  (22d  ed.)  C.'s  estate  into  a  vested  remainder. 

437,  442,  447.  See  Craig  v.  Stacey,  Ir.  Term  R. 

*  An  instance  in  which  an  ex-  249;  Storrs  v.  Burgess,  29  R.  I. 

ecutory   devise   is   turned    into    a  269, 275. 

vested    remainder    would    be    the          '  See    §§  204,  205,  note,    post. 

following:  A  devise  to  A.  in  fee,  but  The  right  of  the  Crown  or  State  to 


VESTED  AND   CONTINGENT  INTERESTS.  95 

§  115  a.  Curtesy  and  Dower. — The  estate  of  a  wife  in  dower, 
or  of  a  husband,  after  the  birth  of  issue,  in  curtesy,  cannot  be 
called  either  vested  or  contingent  interests.  They  are  exec- 
utory limitations.1 

§116.  Equitable  Interests.  —  There  are,  strictly  speaking, 
no  equitable  reversions  or  remainders.  The  so-called  rever- 
sions are  resulting  trusts,  and  a  remainder  implies  the  presence 
of  seisin  and  tenure,  which  are  conceptions  foreign  to  equitable 
interests.  But  to  determine  whether  equitable  interests  are 
vested,  or  contingent  or  executory  limitations,  the  same 
principles  are  to  be  applied  as  with  legal  interests.2 

II.    PERSONAL  PROPERTY. 

§  117.  After  an  absolute  interest  in  personalty,  just  as 
after  a  fee  simple  in  realty,  every  future  limitation  is  exec- 
utory and  not  vested;  and  as  the  only  succession  allowed  in 
personalty  is  to  executors  or  administrators,  a  gift  to  A.  and 
his  heirs,  or  to  A.  and  the  heirs  of  his  body,  or  to  A.  simply, 
is  taken  to  be  an  absolute  gift  to  A.  passing  to  his  executors, 
and  every  limitation  after  such  a  gift  is  executory  and  not 
vested.3 

An  interest  for  years  can  be  created  in  a  chattel,  either  real 
or  personal,  and  therefore  when  a  limitation  is  ready  to  come 
into  possession,  whenever  and  however  such  interest  for  years 
determines,  that  limitation  is  vested. 

§  117  a.  The  difficulty  arises  when  a  chattel  is  given  .for 
life.  Suppose  a  chattel  personal,  for  instance  a  picture,  is 
given  to  A.  for  life  and  on  his  death  to  B.  Is  the  limitation 
to  B.  executory  or  vested?  Marsden  in  his  treatise  on  the 

personal  property  when  the  owner  which  can  be  construed  as  a  con- 
dies  without  next  of  kin  is,  perhaps,  tingent  remainder  cannot  be  con- 
a  right  to  succeed  as  ultimus  heres,  strued  as  an  executory  devise  does 
and  not  a  new  right.  §  205,  note,  not  apply  to  equitable  interests. 
post.  See  §§  324,  325,  post.  On  this  rule 

1  See  §  114,  ante.  see  App.  J,  §  918,  post. 

*  The    rule    that   a   Limitation          3  See  App.  F,  §§  805,  835,  post. 


96  THE   RULE   AGAINST   PERPETUITIES. 

Rule  against  Perpetuities x  says  it  is  "executory,  and  does  not 
vest  within  the  meaning  of  the  Rule  against  Perpetuities  until 
A.'s  death.  .  .  .  The  result,  therefore,  is  that  a  future  or  ex- 
ecutory limitation  of  personalty  vests  or  takes  effect  within 
the  meaning  of  the  Rule  when  it  takes  effect  in  possession." 
Unquestionably  this  is  in  accordance  with  the  theory  of  the 
modern  English  conveyancers,  but  the  older,  and  it  is  sub- 
mitted, the  sounder  view,  is  that  A.  has  the  use  and  occupa- 
tion of  the  chattel  only,  and  that  B.  has  a  vested  interest, 
being  ready  to  come  into  possession,  whenever  A.'s  use  and 
occupation  is  determined.2  Whether  the  one  or  the  other 
theory  is  correct  is  tested  by  a  gift  of  a  chattel  to  a  living 
person,  after  a  gift  for  life  to  an  unborn  person.  Suppose,  for 
instance,  a  picture  is  given  to  A.  for  life,  on  his  death  to  his 
eldest  son  for  life,  and  on  the  death  of  such  eldest  son  to  B., 
a  living  person,  and  his  executors,  A.  at  the  time  of  the  gift 
having  no  children.  If  the  gift  to  B.  in  this  case  is  executory, 
it  is  too  remote;  if  it  is  vested,  then  it  is  good.  All  authority 
is  in  favor  of  its  being  good.3 

1  Pp.  43,  44.  in  Dingley  v.  Dingley,  5  Mass.  535, 

1  See  §  86  a,  ante.  537.     See  Denny  v.  Allen,  1  Pick. 

3  Routledge  v.  Dorril,  2  Yes.  Jr.  147;  Emerson  v.  Cutler,  14  Pick. 
357,  362,  363,  366,  367.  Evans  v.  108;  Nash  t;.  Cutler,  16  Pick.  491. 
Walker,  3  Ch.  D.  211.  Re  Roberts,  It  is  now  completely  overthrown. 
19  Ch.  D.  520.  Loring  v.  Blake,  98  Shattuck  v.  Stedman,  2  Pick.  468. 
Mass.  253.  Seaver  v.  Fitzgerald,  Winslow  v.  Goodwin,  7  Met.  363. 
141  Mass.  401.  See  Crosby  v.  Childs  v.  Russell,  11  Met.  16. 
Crosby,  64  N.  H.  77;  Lennig's  Wight  v.  Shaw,  5  Cush.  56.  Bow- 
Estate,  31  W.  N.  C.  (Pa.)  234,  236;  ditch  v.  Andrew,  8  Allen,  339.  Gib- 
24  Law  Quart.  Rev.  431;  App.  F,  bens  v.  Gibbens,  140  Mass.  102. 
§§  838,  851,  post.  In  the  first  edition  it  was  said 

The  notion  which  at  one  time  that  future  limitations  of  personalty 

prevailed    in    Massachusetts,    that  after  life  interests  were  executory, 

a    different    rule    of    construction  but  were  to  be  treated  on  questions 

was  to  be  applied  in  determining  of  remoteness  as  if  they  were  real 

whether   a    (so    called)    remainder  estate.    This  worked  well  enough  in 

in    personalty    was    vested,    from  practice   as   an   empirical   rule   of 

that  which  was  to  be  applied  with  thumb,  but  the  view  now  presented 

regard    to    a    remainder    in    real  in  the  text  is  much  more  satisfac- 

estate,   was  founded  on  a  dictum  tory  and  is  believed  to  be  sound. 


VESTED  AND   CONTINGENT  INTERESTS.  97 

§  117  6.  There  is  more  room  for  serious  doubt  in  the  case 
of  chattels  real.  The  theory  always  announced  with  regard 
to  these,  is  that  bequests  of  life  interests  in  them  carry  the 
whole  interest,  because  a  life  estate  is  larger  and  therefore 
cannot  be  less  than  a  term  for  years.1  If  this  theory  is  carried 
out  consistently,  then  every  limitation  of  a  term  for  years  follow- 
ing a  gift  of  the  term  for  life  is  executory,  and  may  be  too 
remote,  when  a  like  limitation  of  realty  would  be  vested  and 
valid.  But  it  seems  likely  that  this  piece  of  legal  reasoning  will 
be  unable  to  bear  the  stress  of  application  to  an  actual  case.2 

§  118.  The  term  "vested"  has  been  hitherto  considered  as 
it  is  used  in  questions  of  remoteness;  but  it  has  also  another 
meaning,  which  is  so  frequently  given  to  it,  that  it  cannot 
be  styled  improper.  Such  double  meaning  is,  however,  very 
unfortunate,  as  it  has  led  to  much  confusion.3  This  other 
meaning  of  "vested"  is  "transmissible."  Thus,  if  an  estate 
is  given  to  A.  and  his  heirs,  but  if  he  dies  unmarried  then  to 

B.  and  his  heirs,  here,  in  the  first  sense,  B.'s  interest  is  not 
vested,  for  it  is  subject  to  a  condition  precedent;  in  the  second 
sense  it  is  vested,  for  it  is  transmissible  to  B.'s  heirs.4    The 

1  See   §§  71  a,  71  6,  ante;  App.  94;  Dickson  v.  Dickson,  23  So.  Car. 
F,  §§  807  et  seq.,  post.  216;  1  Roper,  Leg.  (4th  ed.)  550; 

2  See  App.  F,  §§  816,  820,  856,  Marsden,  Perp.  42;  and  a  series  of 
post.  cases  in   Massachusetts,    Dunn  v. 

3  See   Johnson   v.  Edmond,  65  Sargent,  101  Mass.  336;  Merriam  v. 
Conn.  492,  499;  Carney  v.  Kain,  Simonds,  121  Mass.  198,  202;  Minot 
40  W.  Va.  758,  809.     Indeed  this  v.  Tappan,  122  Mass.  535;  Daniels 
ambiguity    of    meaning    has    been  v.  Eldredge,  125  Mass.  356;  Belcher 
perhaps  a  chief  factor  in  the  pro-  v.  Burnett,  126  Mass.  230;  Russell 
duction   of   the  notion  that  pres-  v.    Milton,    133    Mass.    180,    181; 
ently  alienable  interests  are  never  Whipple   v.   Fairchild,    139   Mass. 
too  remote.    See  Chap.  VII.,  post.  262;    Minot    v.    Purrington,     190 

*  See   Barnes   v.  Allen,   1  Bro.  Mass.  336. 

C.  C.  181,  182;  Taylor  v.  Frobisher,  The  introduction  of  this  mean- 
5  De  G.  &  Sm.  191,  197,  198;  Storrs  ing  of  "vested"  into  the  law  may 
v.  Burgess,  29  R.  I.  269;  Kelso  v.  perhaps  have  been  as  follows:  In 
Dickey,  7  W.  &  S.  279;  M'Donald  certain   classes  of  legacies,   to  be 
v.  M'Mullen,  2  Mills,  Const.  91,  paid    when    the    legatee    reaches 


THE  RULE  AGAINST  PERPETUITIES. 


Rule  against  Perpetuities  does  not  concern  itself  with  this 
secondary  meaning  of  the  word  "vested."  Thus,  if  an  estate 
is  devised  to  A.  and  his  heirs,  with  an  executory  devise  over 
to  B.  and  his  heirs  in  case  A.  or  his  heirs  ever  cease  to  bear 
the  name  of  the  testator,  the  executory  devise  to  B.  is  vested 
in  the  secondary  sense,  because  it  is  transmissible  from  B.  ta 
his  heirs;  but  it  is  nevertheless  too  remote,  for  in  the  primary 
sense  it  is  not  vested,  but  contingent,  —  that  is,  it  is  subject 
to  a  condition  precedent.1 


twenty-one  or  some  other  age 
named,  the  courts  construe  the 
gift  as  an  absolute  one  to  the  legatee, 
his  executors  and  administrators, 
and  the  direction  with  regard  to  pay- 
ment as  given  solely  for  the  benefit 
of  or  on  account  of  the  legatee;  that 
is,  they  regard  the  legacy  as  certain 
to  become  payable  in  any  event,  — 
payable  when  the  legatee  reaches 
twenty-one  (or  other  age),  if  he  so 
long  lives;  but  if  he  dies  before  that 
time,  payable  to  his  executors  or 
administrators.  Such  a  legacy  was 
called  vested,  because  it  was  cer- 
tain to  take  effect  in  the  legatee  or 
his  representatives.  Now  the  fact 
that  such  a  legacy  was  vested  was 
brought  out  in  practice  by  the  cir- 
cumstance that  the  executor  of  the 
legatee  took  it,  and  the  incident  of 
transmissibility  thus  came  to  be 
regarded  as  the  essential  charac- 
teristic of  a  vested  interest,  and 
gave  rise  to  the  secondary  meaning 
of  the  term  "vested."  See  Haw- 
kins, Wills  (2d  ed.)  266,  267. 

1  Another  use  of  the  term 
"vested  interest"  should  be  no- 
ticed. "When  it  is  said  that  the 
Legislature  ought  not  to  deprive 


parties  of  their  'vested  rights,'  all 
that  is  meant  is  this:  that  the 
rights  styled  'vested'  are  sacred  or 
inviolable,  or  are  such  as  the  parties- 
ought  not  to  be  deprived  of  by 
the  Legislature.  Like  a  thousand 
other  propositions  which  sound 
speciously  to  the  ear,  it  is  either 
purely  identical  and  tells  us  noth- 
ing, or  begs  the  question  in  issue." 
2  Aust.  Jur.  (3d  ed.)  887,  888. 
See  Lewis,  Use  of  Political  Terms> 
32-34.  This  use  of  "vested"  has 
passed  from  the  domain  of  politics 
to  that  of  law,  by  reason  of  the 
provisions  in  the  14th  Amendment 
to  the  Constitution  of  the  United 
States,  and  in  most  of  the  State 
Constitutions,  that  no  one  shall  be 
deprived  of  his  property  "without 
due  process  of  law,"  or  "but  by  the 
law  of  the  land."  These  provisions, 
have  generally  been  construed  by 
the  courts  to  prevent  any  general 
or  special  legislation  taking  away 
"vested  rights,"  and  have  therefore 
called  forth  a  somewhat  more  pre- 
cise determination  of  the  term.  The 
cases  will  be  found  collected  in 
Cooley,  Const.  Limit,  c.  11.  They 
do  not  concern  us  here. 


POSTPONEMENT  OF  ENJOYMENT.  99 


CHAPTER  IV. 

POSTPONEMENT  OF  ENJOYMENT  AND  THE  RULE 
AGAINST  PERPETUITIES. 

§  118  a.  THE  tying  up  of  property,  the  taking  of  it  out  of 
commerce,  can  be  accomplished  either,  first,  by  restraining 
the  alienation  of  interests  in  it,  or,  secondly,  by  postponing  to 
a  remote  period  the  arising  of  future  interests.  To  guard  effec- 
tually against  this  evil,  as  the  law  considered  it,  both  these 
methods  had  to  be  provided  against.  The  law  provided  against 
the  first  by  the  doctrine  that  all  interests  should  be  alienable; 
it  provided  against  the  second  by  the  doctrine  that  all  interests 
must  arise  within  certain  limits,  —  that  is,  by  the  Rule  against 
Perpetuities.1  These  two  doctrines,  though  having  originally 
a  common  purpose,2  have  had  a  separate  development.  The 
attempts  to  combine  them  have  led  to  much  confusion.3 

§  119.  Neither  the  common  law  nor  equity  allows  restraints 
on  the  alienation  of  property,  save  in  the  case  of  property 
settled  or  devised  to  the  separate  use  of  married  women  or 
on  charitable  uses.4  The  restraints  imposed  on  estates  tail  by 
the  Statute  De  Donis  have  long  ceased  to  operate.  It  is  true 
that  life  estates  and  estates  for  years  may  be  made  terminable 
on  an  attempt  at  alienation;  but  no  interest,  real  or  personal, 

1  On  the  history  of  the  develop-  736,  737,  743,  744,  748,  750,  898- 
ment  of  these  two  doctrines,   see  908,  post.    The  distinction  between 
Chap.  V.,  post,  especially   §§   140  the   rules   governing   restraints  on 
et  seq.,  and  Gray,  Restraints  on  the  alienation    and    the   Rule    against 
Alienation  of  Property  (2d  ed.).  Perpetuities   is   stated:   Becker   v. 

2  See  14  Law  Quart.  Rev.  234,  Chester,  115  Wis.  90. 

240,  note.  4  On  the  application  of  the  Rule 

1  See    §§  2-3,    ante,   140-141 /,  to    Charitable    Uses,    see    Chap. 

234-237  d,  245  c-245  /,  268-278  d,  XVIIL,  post. 
432-437  b,  567,  590,  591,  597-603  h, 


100  THE  RULE   AGAINST  PERPETUITIES. 

legal  or  equitable,  can  be  held  by  any  person,  except  a  married 
woman,  in  such  a  way  that  he  or  she  can  enjoy  the  income  or 
benefits  thereof  but  cannot  alienate  it  or  subject  it  to  his  or 
her  debts.1 

§  120.  A  result  of  the  invalidity  of  restraints  on  aliena- 
tion calls  for  attention  in  connection  with  the  Rule  against 
Perpetuities.  When  a  person  is  entitled  absolutely  to  prop- 
erty, any  provision  postponing  its  transfer  or  payment  to  him 
is  void.2  Thus,  suppose  property  is  given  to  trustees  in  trust 
to  pay  the  principal  to  A.  when  he  reaches  thirty.  When  any 
other  person  than  A.  is  interested  in  the  property,  when,  for 
instance,  there  is  a  gift  over  to  B.  if  A.  dies  under  thirty,  the 
trustee  will  retain  the  property  for  the  benefit  of  B.;  but  when 
no  one  but  A.  is  interested  in  the  property,  when,  should  he 
die  before  thirty,  his  heirs  or  representatives  would  be  en- 
titled to  it,  when,  in  short,  the  direction  for  postponement  has 
been  made  for  A.'s  supposed  benefit,  such  direction  is  void, 
in  pursuance  of  the  general  doctrine  that  it  is  against  public 
policy  to  restrain  a  man  in  the  use  or  disposition  of  property 
in  which  no  one  but  himself  has  any  interest.3 

1  In  many  of  the  United  States  Illinois  and  Massachusetts,  where 
restraints  against  alienation  can  be  such  postponement  is  allowed,  see 
attached  to  equitable  life  interests  §§  121  c,  et  seq.,  post. 
given  to  men  or  to  unmarried  2  Mr.  Foulke,  Treatise,  §  486, 
women.  Trusts  of  this  sort  are  says  that  a  postponement  of  en  joy- 
known  as  spendthrift  trusts.  In  ment  is  not  a  restraint  on  alienation, 
several  States,  e.  g.  New  York,  But  the  postponement  of  enjoy- 
such  restraints  are  more  or  less  ment  restrains  the  owner  of  the  ab- 
permitted  by  statute.  See  the  solute  property  from  exercising  the 
whole  matter  discussed  in  Gray,  right,  he  would  otherwise  possess, 
Restraints  on  the  Alienation  of  of  transferring  the  immediate  right 
Property.  On  the  application  of  to  its  enjoyment,  and  may  therefore, 
the  Rule  against  Perpetuit  s  to  it  seems,  be  properly  called  a  re- 
provisions  restraining  anticipation  straint  on  alienation.  See  §  121  a. 
by  married  women  and  to  spend-  *  Josselyn  v.  Josselyn,  9  Sim.  63. 
thrift  trusts,  see  §§  432-438,  post;  Saunders  v.  Vautier,  4  Beav.  115; 
and  as  to  its  application  to  pro-  Cr.  &  Ph.  240.  Curtis  v.  Lukin, 
visions  postponing  the  right  to  5  Beav.  147,  155,  156.  Rocke  v. 
enjoy  equitable  fees  or  absolute  Rocke,  9  Beav.  66.  Swaffield  v. 
interests  in  those  States,  like  Orton,  1  De  G.  &  Sm.  326.  Re 


POSTPONEMENT  OF  ENJOYMENT. 


101 


§  121.  As  such  provisions  are  void,  no  question  of  remote- 
ness can  be  raised  with  regard  to  them.  If  such  a  direction  to 
pay  or  convey  to  a  legatee  at  a  period  beyond  the  limit  of  the 
Rule  against  Perpetuities  were  a  condition  precedent  to  the  right 
to  enjoy,  and  were,  apart  from  the  Rule,  valid,  it  would  be  bad 
as  violating  the  Rule;  but  as  it  is  invalid,  apart  from  the  Rule, 
the  objection  of  remoteness  does  not  apply  to  it.1 


Young's  Settlement,  18  Beav.  199. 
Gosling  v.  Gosling,  H.  R.  V.  Johns. 
265.  Re  Jacob's  Will,  29  Beav. 
402.  Coventry  v.  Coventry,  2  Dr. 
&  Sm.  470.  Christie  v.  Gosling, 
L.  R.  1  H.  L.  279,  282.  Magrath 
v.  Morehead,  L.  R.  12  Eq.  491. 
Hilton  v.  Hilton,  L.  R.  14  Eq.  468, 
475.  In  re  Johnston  [1894]  3  Ch. 
204.  In  re  Thompson,  44  W.  R. 
582.  Sanford  v.  Lackland,  2  Dill. 
6.  Huber  v.  Donoghue,  49  N.  J. 
Eq.  125.  Bennett  v.  Chapin,  77 
Mich.  526.  Rector  v.  Dalby,  98 
Mo.  Ap.  189.  See  Talbot  v.  Jevers, 
L.  R.  20  Eq.  255;  Weatherall  v. 
Thornburgh,  8  Ch.  D.  261;  Re 
Parry,  60  L.  T.  R.  489;  Weather- 
head  v.  Stoddard,  58  Vt.  623,  630; 
Tarrant  v.  Backus,  63  Conn.  277; 
Conn.  Trust  Co.  v.  Hollister,  74 
Conn.  228,  232;  In  re  Carter,  21 
N.  Z.  L.  R.  227.  The  cases  of 
Peard  v.  Kekewich,  15  Beav.  166, 
and  Rhoads  v.  Rhoads,  43  111.  239, 
cannot,  it  would  seem,  be  sup- 
ported. See  Gray,  Restraints  on 
Alienation  (2d  ed.),  §§  109  6,  124. 

1  Farmer  v.  Francis,  2  Bing. 
151;  9  Moore,  310;  2  S.  &  St.  505. 
Murray  v.  Addenbrook,  4  Russ. 
407.  Bland  v.  Williams,  3  Myl.  & 
K.  411.  Doe  d.  Dolley  ».  Ward, 
9  A.  &  E.  582.  Blease  v.  Burgh,  2 
Beav.  221.  Jackson  v.  Majoribanks, 
12  Sim.  93.  Greet  v.  Greet,  5  Beav. 
123.  Davies  v.  Fisher,  Id.  201. 


Milroy  v.  Milroy,  14  Sim.  48. 
Harrison  v.  Grimwood,  12  Beav. 
192.  Tatham  v.  Vernon,  29  Beav. 
604.  Knox  v.  Wells,  2  H.  &  M. 
674.  Saumarez  v.  Saumarez,  34 
Beav.  432.  Edmondson's  Estate, 
L.  R.  5  Eq.  389.  Willson  v.  Cobley, 
[1870]  W.  N.  46.  Fox  v.  Fox,  L. 
R.  19  Eq.  286.;  Mappin  t>.  Mappin, 
[1877]  W.  N.  207.  In  re  Sevan's 
Trusts,  34  Ch.  D.  716.  Rogers's 
Estate,  179  Pa.  602.  Wright  v.  Hill, 
140  Ga.  554.  Re  Levy,  7  N.  S. 
Wales  St.  Rep.  885.  See  Taylor 
v.  Frobisher,  5  De  G.  &  Sm.  191; 
Oddie  v.  Brown,  4  De  G.  &  J. 
179;  Baxter's  Trusts,  10  Jur.  N.  8. 
845;  Kimball  v.  Crocker,  53  Me. 
263;  Lane  v.  Lane,  8  Allen,  350; 
Odeil  v.  Odell,  10  Allen,  1,  13,  14; 
Wahl's  Estate,  20  Phila.  32,  26 
W.  N.  C.  (Pa.)  249;  Lewis,  Perp. 
c.  22,  and  Suppl.  170,  171;  1  Jarm. 
Wills  (6th  ed.)  303;  Marsden,  Perp. 
c.  11;  Harg.  Thel.  Act,  §  83.  The 
case  of  Bute  v.  Harman,  9  Beav. 
320,  is  wrongly  reported.  See 
Boreham  v.  Bignall,  8  Hare,  131, 
133,  note  (d);  Southern  v.  Wollas- 
ton,  16  Beav.  166. 

When  the  postponement  of  the 
right  to  enjoy  a  vested  interest  is 
imposed  for  the  benefit  of  third 
persons,  such  postponement  seems 
to  be  in  itself  valid  and  therefore 
to  come  within  the  scope  and  opera- 
tion of  the  Rule  against  Perpetui- 


102  THE  RULE   AGAINST  PERPETUITIES. 

§  121  a.  A  question,  however,  of  some  nicety  may  arise 
under  this  head.  When  there  is  a  gift  to  a  class,  the  class  is 
closed  and  the  number  determined  at  the  period  of  distribu- 
tion. Thus,  if  there  is  an  immediate  bequest  to  the  grand- 
children of  the  testator,  only  those  born  at  his  death  will  take; 
after-born  grandchildren  are  excluded.  But,  again,  if  there  is 
a  bequest  to  those  grandchildren  of  the  testator  who  reach 
twenty-one,  all  grandchildren  born  before  the  eldest  living 
grandchild  reaches  twenty-one  will  take.  And  so,  if  there  is 
a  legacy  to  the  grandchildren  of  a  testator  to  vest  immedi- 
ately, but  there  is  a  direction  that  it  shall  not  be  paid  until 
twenty  years  after  the  testator's  death,  although,  as  we  have 
seen,  such  clauses  postponing  the  possession  of  present  vested 
interests  are  generally  disregarded,  yet  in  this  case  the  payment 
will  be  postponed  in  order  to  give  the  class  a  chance  to  in- 
crease, and  grandchildren  born  after  the  testator's  death,  but 
within  the  twenty  years,  will  take.1 

§  121  6.  Suppose,  now,  there  is  an  immediate  vested  legacy 
to  the  children  of  A.,  to  be  paid  to  them  when  they  reach 
twenty-five;  and  suppose  further,2  First,  that  there  are  no 
children  of  A.  born  and  four  years  old  at  the  testator's 

ties.    See  §§  121  a,  121  b,  638  et  seq.,  postponed,    for    instance    until    a 

post.  period  of  ten  years  from  the  death 

Sometimes  property  is  given  to  of  a  testator  has  expired,  the  pro- 

a  trustee  in  trust  to  pay  the  in-  vision  is  sustained  for  the  purpose 

come  to  one  or  more  of  a  class  of  of  allowing  the  class  to  increase, 

persons  at  his  discretion.    In  such  Oppenheim  v.  Henry,  10  Hare,  441. 

a  case  no  member  of  the  class  has  On    the    application   of    the    Rule 

any  rights,  nor  consequently  any-  against  Perpetuities  to  such  a  gift, 

thing  which  he  can  alienate.    The  see  §§  121  a,  121  b,  post. 
class,  however,  taken  as  a  whole,  On  the  application  of  the  Rule 

has  rights  against  the  trustee.    As  against  Perpetuities  to  accumula- 

to    the    application    of    the    Rule  tions,  see  Chap.  XX.,  post. 
against  Perpetuities  to  such  a  pro-  l  Oppenheim  v.  Henry,  10  Hare, 

vision,  see  §§  246,  439,  post.  441. 

When  a  gift  to  a  class  creates  a  *  This     supposed     case     as     it 

vested  right   which   is   transmissi-  stood  in  the  preceding  edition  has 

ble  to  the  representatives  of  the  been  corrected  in  accordance  with 

members  of  the  class,  but  there  is  a  suggestion  of  Mr.  Kales,  19  Harv. 

a  provision  that  payment  shall  be  Law  Rev.  598,  note,  604,  note. 


POSTPONEMENT  OF   ENJOYMENT.  103 

death.  Here,  if  the  class  is  allowed  to  increase  until  a  child 
reaches  twenty-five,  the  number  of  the  class  may  not  be  deter- 
mined till  too  remote  a  period,  the  Rule  against  Perpetuities 
will  be  violated,  and  the  gift  to  a  class  which  may  be  so  consti- 
tuted will  be  bad;  there  is,  then,  no  reason  for  sustaining  the 
direction  to  postpone  hi  the  interest  of  increasing  the  class,  and 
the  provision  is  inoperative.  But  suppose,  Secondly,  there  is 
a  child  of  A.  born  and  four  years  old  at  the  testator's  death. 
Whether  the  class  will  be  allowed  to  increase  depends  upon 
whether  the  period  of  distribution  is  too  remote.  Now,  if  a 
child  of  A.  dies  under  twenty-five,  his  executor  or  administrator 
is  entitled  to  his  share  at  the  time  when  the  child  would  have 
reached  twenty-five.1  The  period  of  distribution  must  there- 
fore be  when  the  eldest  child  of  A.  living  at  the  death  of  the 
testator  reaches,  or  would  have  reached,  if  living,  twenty-five. 
Such  an  event  must  happen  at  latest  within  twenty-one  years 
after  a  life  in  being,  to  wit,  the  life  of  the  eldest  grandchild.  As 
therefore  the  period  of  distribution  and  the  determination  of 
the  class  cannot  be  at  too  distant  a  period,  there  is  no  objection 
on  the  score  of  remoteness  to  allowing  the  class  to  increase  till 
the  period  of  distribution  arrives.2 

§  121  6  6.  When  a  direction  for  postponement  is  a  condition 
precedent  to  the  enjoyment  of  a  right,  it  would  come,  if  other- 
wise valid,  within  the  regulation  of  the  Rule  against  Perpetuities. 
Such  direction  may  take  the  form  of  a  restraint  on  alienation, 
as  where  property  is  given  to  A.  and  his  heirs  in  trust  for  B. 
and  his  heirs,  with  a  proviso  that  the  trust  shall  not  be  termi- 
nated for  a  certain  number  of  years.  As  has  been  said,  such  a 
proviso  being  bad  anyway,  the  time  during  which  the  trust  is 
declared  not  determinable  is  immaterial.  The  Rule  against 
Perpetuities  has  nothing  to  do  with  the  matter.  It  is  only 
future  interests  otherwise  valid  that  come  within  the  scope  of 
the  Rule.3 

1  Chester  v.  Painter,  2  P.  Wms.          *  See  §§  638  et  seq.,  post. 
335.     Roden  v.  Smith,  Amb.  588.  •  See  Re  Levy,  7  N.  S.  Walea 

Maher  v.  Maher,  1  L.  R.  Ir.  22.  St.  Rep.  885. 


104  THE  RULE  AGAINST  PERPETUITIES. 

§  121  c.  A  local  doctrine,  adopted  in  Massachusetts  in 
1889,  calls  for  notice.  In  Claflin  v.  Clafiin1  the  Supreme 
Judicial  Court  of  Massachusetts  decided  that  if  property  is 
held  by  trustees  for  the  sole  absolute  interest  of  A.,  but  there  is 
a  proviso  that  they  shall  not  transfer  it  to  him  until  he  reaches 
twenty-five,  he  cannot  demand  it  till  he  arrives  at  that  age.2 

§  121  d.  Suppose,  then,  that  in  Massachusetts,  by  will, 
property  is  given  to  trustees  for  the  sole  absolute  interest  of 
the  first  son  of  A.  (A.  being  now  a  bachelor),  but  there  is  a 
proviso  that  the  property  shall  not  be  transferred  to  such  son 
until  he  reaches  twenty-five.  A.  marries,  has  a  son  born,  and 
dies  soon  after.  The  son  is  now  of  age.  What  is  to  happen? 

§  121  e.  The  suggestion  that  the  right  to  enjoy  is  a  right 
independent  of  the  vested  property,  and  that  such  right  to 
enjoy,  being  on  a  remote  condition  precedent,  can  never  come 
into  effect,  though  the  vested  interest  exists,  or  in  other  words, 
that  a  man  may  have  a  vested  interest  which  he  can  never 
by  any  possibility  enjoy,  is  too  absurd  for  consideration. 

1  149  Mass.  19.  On    the    other    hand,    though 

*  Claflin  v.  Claflin  is  discussed,  there   is    some    obscurity   in    the 

Gray,     Restraints    on    Alienation  Pennsylvania  cases,  yet  Shallcross's 

(2d  ed.)  §§124  1-124  p.  Estate,  200  Pa.  122,  makes  it  clear 

The  doctrine  of  Claflin  v.  Claflin  that   the  Supreme   Court   in  that 

seems  to  be  law  in  Illinois.    Rhoads  State    contemplates    no  departure 

v.  Rhoads,  43  111.  239  (see  Gray,  from  the  common   law. 

Restraints  on  Alienation,   §   124).  There  was  some,  though  slight, 

Lunt  v.  Lunt,  108  111.  307.    Howe  ground  for  thinking  that  the  same 

v.  Hodge,  152  111.  252.    Chapman  notion  had  been  adopted  in  Mis- 

v.  Cheney,  191  111.  574.     Planner  souri   (see  Gray,   §  53,  and  cases 

v.  Fellows,  206  111.  136.     Wagner  there  cited),  but  in  Rector  v.  Dalby, 

v.  Wagner,  244  111.  101.    See  Arm-  98  Mo.  Ap.  189,  the  Kansas  City 

strong   v.    Barber,    239    111.    389;  Court  of  Appeals  refused  to  follow 

Wallace  v.  Foxwell,  250  111.  616;  Claflin  v.  Claflin,  and  declared  the 

Kales,  Fut.  Int.  in  111.  §§  223,  263  opposite  view  "to  be  supported  not 

et  seq.;  5  111.  Law  Rev.  318,  386;  only  by  a  greater  weight  of  author- 

and  it  has  been  approved  by  the  ity,  but  also  by  that  of   sounder 

Supreme    Court    of     the    United  reason;"  p.   197.     See  Tarrant  v. 

States  in  a  case  from  the  District  Backus,  63  Conn.  277,  284,  285; 

of  Columbia.    Shelton  v.  King,  229  A  very  v.  A  very,  90  Ky.  613;  and 

U.  S.  90.  §  121  j,  post. 


POSTPONEMENT  OP  ENJOYMENT.  105 

§  121  /.  It  would  seem  that  one  of  two  courses  could  be 
taken.  We  have  a  proviso  for  postponement  of  possession  to 
which  (on  the  assumption  that  Claflin  v.  Claflin  is  law)  the 
only  objection  is  that  the  proviso  is  too  remote.  Now,  we 
may  say  — 

First.  That  the  proviso  is  void  as  introducing  a  remote 
modification  and  is  to  be  rejected.  The  son  will  then  be  en- 
titled to  immediate  possession  of  the  property.  This  is  the 
mode  in  which  the  English  equity  courts  have  treated  the 
analogous  case  of  clauses  against  anticipation  attached  to  a 
married  woman's  estate.1 

Second.  That  the  proviso  does  not  violate  the  Rule  against 
Perpetuities;  that  the  Rule  is  concerned  only  with  the  begin- 
ning of  interests;  that  as  the  son's  interest  vests  within  the 
prescribed  limits  the  Rule  is  satisfied  and  has  nothing  more 
to  do  with  the  matter;  but  that  then  another  question  arises, 
with  which  the  Rule  against  Perpetuities  has  nothing  to  do, 
viz.:  Can  the  possession  of  a  vested  interest  be  postponed? 
Ex  hypothesi  it  can,  and  therefore  the  proviso  is  good.  In 
other  words:  The  Rule  against  Perpetuities  settles  the  time 
within  which  interests  must  vest;  but,  when  once  vested,  they 
are  all,  present  and  future  alike,  subject  to  the  same  restraints 
against  alienation,  and  with  this  the  Rule  against  Perpetuities 
has  nothing  to  do.2  This  is  the  view  which  Jessel,  M.  R., 
thought  correct,  though  his  language  was  not  always  the 
clearest,  and  though  he  felt  bound  by  the  earlier  cases  to  decide 
against  his  judgment.  It  is  respectfully  submitted  that  this 
is  the  correct  view,  and  that  the  other  theory  is  one  more  in- 
stance of  the  confusion  wrought  by  confounding  the  Rule  against 
Perpetuities  with  the  rules  against  restraints  on  alienation.3 

§  121  g.  Now  let  us  turn  again  to  the  case  imagined  in 
§  121  6,  ante,  —  a  legacy  to  the  children  of  A.  to  be  paid  them 
when  they  reach  twenty-five,  and  suppose  it  made  in  Massa- 

1  See  §§  432  et  seq.,  post.  389,  402.    See  4  111.  Law  Rev.  281, 

1  This  is  quoted  with  approval      282. 
in  Armstrong  v.   Barber,   239   111.  »  See  §§  436-437  6,  442,  post. 


106  THE  RULE  AGAINST  PERPETUITIES. 

chusetts  or  Illinois,  where  the  doctrine  of  Claflin  v.  Claflin 
prevails;  and  let  us  (I)  further  suppose  that  at  the  testator's 
death  no  child  of  A.  has  reached  the  age  of  four  years.  If 
the  first  method  of  dealing  with  the  case  suggested  in  the 
preceding  section  is  adopted,  then  the  postponing  proviso 
will  be  rejected,  and  the  children  of  A.  born  after  the  testa- 
tor's death  excluded.  But  if  the  second  and,  as  it  is  submitted, 
the  true  theory  is  adopted,  then  the  proviso  is  retained.  Does 
that  let  in  the  after-born  children?  It  would  seem  not.  By 
letting  in  after-born  children,  the  number  and  size  of  the  shares 
may  be  determined  at  too  remote  a  period  and,  therefore,  as 
shown  in  §  121  6,  ante,  the  construction  which  limits  the  class 
to  those  children  born  at  the  testator's  death  will  not  be  altered. 
At  the  same  time,  as  is  contended  in  the  preceding  section,  the 
doctrine  of  Claflin  v.  Claflin  will  preserve  the  proviso  for 
postponement  as  to  the  members  of  the  class  so  limited.  But 
suppose  (II)  that  at  the  testator's  death  there  is  at  least  one 
child  four  years  old  or  over,  then  by  either  method  the  post- 
poning provision  will  be  retained,  as  all  the  children  born  before 
the  eldest  reaches,  or  would,  if  living,  have  reached,  twenty- 
five,  will  take.  By  the  first  method  the  postponement  will  cease 
as  to  the  shares  of  all  children  of  A.'s  not  four  years  old  at  the 
testator's  death,  while,  by  the  second  method,  it  will  be  good 
as  to  all  the  children  who  take. 

§  121  h.  Suppose,  again,  that  a  devise  takes  this  form. 
Property  is  given  to  A.  and  his  heirs  on  trust  to  pay  the  in- 
come to  B.  and  his  heirs,  with  a  proviso  that  the  trust  is  not 
to  be  determined  until  A.  wishes  it.  Apparently  the  Massa- 
chusetts court  would  apply  the  doctrine  of  Claflin  v.  Claflin 
and  would  refuse  to  compel  the  trustee  to  convey  against  his 
will.1  But  how  if  it  is  provided  that  the  trust  shall  not  be 
terminated  until  A.  or  his  heirs  wish  it,  or  until  some  other 
possibly  remote  contingency  happens? 

§  121  i.  The  fact  is  that  the  Massachusetts  court  in  Claflin 

1  See  Young  v.  Snow,  167  Mass.  467;  Hale  v.  Herring,  208  Mass. 
287;  Danahy  v.  Noonan,  176  Mass.  319. 


POSTPONEMENT  OF  ENJOYMENT. 


107 


v.  Claflin  introduced  a  novel  idea  into  the  law,  that  of  the 
inalienability  of  absolute  interests,  just  as  the  Court  of  King's 
Bench  in  Pells  v.  Brown  1  introduced  a  novel  idea  into  the 
law,  that  of  the  indestructibility  of  future  interests.2  And 
as  the  Rule  against  Perpetuities  had  to  be  invented  to  control 
the  indestructible  future  interests  created  by  Pells  v.  Brown,  so 
some  rule  must  be  invented  to  control  the  inalienable  inter- 
ests created  by  Claflin  v.  Claflin.  It  is  perhaps  likely  that  the 
same  period  as  that  prescribed  by  the  Rule  against  Perpetu- 
ities will  be  taken,3  although  it  would  seem  quite  open  to  the 
Court  to  adopt  some  other  period,  if  found  more  convenient.4 
§  121  i  i.  In  calculating  the  period  are  we  to  begin  from  the 
testator's  death,  or  from  the  beginning  of  the  future  interest? 
Professor  Kales6  thinks  we  should  begin  with  the  testator's 
death.  Following  the  analogy  of  restraints  on  anticipation  of 


1  Cro.  Jac.  590  (1620). 

2  It  is  worth  while  in  this  con- 
nection   to    note    the    remarks   of 
Treby,    C.    J.,    in    Scattergood   v. 
Edge,  12  Mod.  278,  287:  "These 
executory    devises    had    not    been 
long  countenanced  when  the  judges 
repented  them;  and  if  it  were  to  be 
done  again,  it  would  never  prevail," 
and  the  more  picturesque  language 
of  Powell,  J.,  in  the  same  case  (p. 
281),  that  the  notion  that  an  execu- 
tory devise  was  not  barred  by  a 
recovery    "went    down    with    the 
judges  like  chopped  hay." 

8  The  question  arose  and  was 
argued  in  Wirth  v.  Wirth,  183  Mass. 
527,  but  the  case  went  off  on  an- 
other point,  the  Court  "not  in- 
timating any  opinion  upon  any 
other  of  the  matters  in  dispute." 
See  Winsor  v.  Mills,  157  Mass. 
362,  364,  where  Knowlton,  J.,  says, 
—  "Where  such  a  restraint  ton 
alienation  of  a  fee  simple)  is  held 
permissible  for  a  limited  time,  it 
would  be  deemed  unreasonable 


and  contrary  to  the  policy  of  the 
law  to  allow  it  to  continue  beyond 
the  period  fixed  by  the  rule  against 
perpetuities." 

4  See  Armstrong  t>.  Barber,  239 
111.  389,  403.  In  Southard  v. 
Southard,  210  Mass.  347,  a  trust 
was  created  in  1856  to  continue 
until  certain  mortgages  were  paid 
out  of  accumulated  income.  In 
1910  the  Court  ordered  the  trust 
terminated.  They  said:  "The  in- 
hibition from  making  any  con- 
veyance of  an  estate  in  fee  simple 
until  the  mortgages  had  been  pre- 
viously satisfied  from  income  ren- 
dered the  property  inalienable  for 
an  unreasonable  period  and  the 
trust  should  be  terminated." 
Nothing  was  said  as  to  what  was 
a  reasonable  period,  or  about  any 
analogy  to  the  Rule  against  Per- 
petuities. Cf.  an  able  article  by 
Mr.  G.  L.  Clark,  10  Mich.  Law 
Rev.  31,  37  et  aeq. 

•  19  Harv.  Law  Rev.  604,  note; 
20  Harv.  Law  Rev.  202. 


108  THE  RULE  AGAINST  PERPETUITIES;* 

future  interests  of  married  women:  —  if  we  adopt  the  present 
doctrine  of  the  English  courts,  this  may  be  right;  but  if  we 
adopt  the  view  of  Jessel,  M.  R.,  which,  it  is  submitted,  is  cor- 
rect, we  should  start  from  the  beginning  of  the  future  estate. 
If  the  latter  view  is  sound,  then  every  postponement  of  enjoy- 
ment confined  to  the  life  of  the  first  taker  of  a  vested  interest 
would  be  good. 

§  121  j.  Another  local  doctrine,  of  a  similar,  though  not 
identical,  character,  should  be  remarked  upon.  In  Kentucky, 
a  proviso  attached  to  a  conveyance  in  fee  simple,  restraining 
the  grantee  for  a  limited  time  from  alienation,  is  valid.1  The 
Kentucky  Compiled  Statutes  (1894),  §2360,  reads, —  "The 
absolute  power  of  alienation  shall  not  be  suspended,  by  any 
limitation  or  condition  whatever,  for  a  longer  period  than 
during  the  continuance  of  a  life  or  lives  in  being  at  the  crea- 
tion of  the  estate,  and  twenty-one  years  and  ten  months  there- 
after." In  Johnson  v.  Johnson 2  a  testatrix  devised  property 
to  a  trustee  to  apply  the  income  to  the  use  of  her  son  and  his 
family  during  his  life,  and  on  his  death  the  income  to  be  held 
for  the  use  and  benefit  of  the  son's  children,  until  the  youngest 
reached  twenty-five,  and  then  to  be  equally  divided  between 
them.  It  was  held  that  on  the  son's  death  the  children  were 
entitled  to  have  the  property  distributed  among  them. 

1  See  Gray,  Restraints  on  Alien-          In  Feit  v.  Richards,  64  N.  J.  Eq. 

ation  (2d  ed.),  §§  53,  55;  and  be-  16,  Magie,  C.,  expresses,  obiter,  his 

sides  the  cases  there  cited,  Smith  inclination  to  agree  with  the  dictum 

v.  Isaacs,  78  S.  W.  Rep.  (Ky.)  434.  of  Jessel,  M.  R.,  in  In  re  Macleay, 

See  §  737,  post.  20  Eq.  186,  that  a  restraint  on  the 

The  cases  in  the  Dominion  of  alienation  of  a  fee  limited  in  time 

Canada  holding  a  like  doctrine  (for  may  be  good.     But  the  contrary 

which  see  Gray,  loc.  cit.,  and  also  has  now  been  expressly  ruled  in 

Chisholm   v.    London   &    Western  England.    In  re  Rosher,  26  Ch.  D. 

Trusts  Co.,  28  Ont.  347)  have  been  801.    Cf.  Rackemann  v.  Riverbank 

overruled  by  the  Supreme  Court  of  Improvement   Co.,    167   Mass.    1; 

Canada  in  Blackburn  v.  McCallum,  Fowler  v.   Duhme,    143  Ind.  248; 

33  Can.  S.  C.  65.    Cf.  16  Can.  Law  Atwater  v.  Russell,  49  Minn.  22, 

Times,    1;    17   Can.    Law   Times,  57. 
105.  «  79  S.  W.  Rep.  (Ky.)  293. 


ORIGIN  AND  HISTORY.  109 


CHAPTER  V. 

ORIGIN  AND  HISTORY  OF  THE  RULE  AGAINST 
PERPETUITIES. 

1.   No  Question  of  Remoteness  in  Early  Times.  —  Possibility 
on  a  Possibility. 

§  123.  BEFORE  the  enactment  of  the  Statute  of  Uses l  (1535) 
and  the  Statute  of  Wills 2  (1540),  no  question  of  remoteness  in 
the  creation  of  estates  and  interests  seems  to  have  come  before 
the  courts.  It  is  true  that  freehold  estates  could  not  be  granted 
in  futuro  except  by  way  of  remainder;  but  this  arose  from  the 
necessity  of  livery,  not  from  any  idea  of  remoteness.  It  is 
also  true  that  existing  incorporeal  hereditaments,  e.  g.  rever- 
sions, rents,  etc.,  could  not  be  granted  in  futuro;  but  this 
again  was  not  on  the  score  of  remoteness.3  And  to  the  interests 
which  could  be  created  in  futuro,  such  as  rents,  chattels  real, 
uses  in  equity,  we  never  hear  of  an  objection  that  they  were 
too  remote.4 

§  124.  There  was  a  mode  before  the  Statutes  of  Uses  and 
Wills  in  which  a  freehold  estate  could  be  created  in  futuro. 
By  the  custom  of  gavelkind,  and  by  the  customs  in  many 
localities,  e.  g.  in  London,  land  was  devisable.  Land  passed 
under  a  will  without  livery,  and  it  was  repeatedly  held  that  a 
power  to  executors  to  sell  the  testator's  land  was  good;  that 
until  the  sale  the  land  was  in  the  heir  or  devisee;  but  that 
upon  the  execution  of  the  power  the  estate  passed  to  the 
vendee,  by  virtue  of  the  will,  without  livery,  and  even  with- 

1  St.  27  Hen.  VIII.  c.  10.  lington,  22  Edw.  III.  19;  Fitz.  Ab. 

*  St.  32  Hen.  VIII.  c.  1.  Condicion.  11,  12;  10  Hen.  VII.  12; 
1  See  §  17,  ante.  Lewis,  Perp.  c.  29. 

•  See  Everwike  v.  Prior  of  Brid- 


110  THE   RULE   AGAINST   PERPETUITIES. 

out  a  deed,  from  the  executors.1  The  right  of  the  executors 
to  thus  create  an  estate,  when  they  had  no  estate  themselves, 
was  felt  to  be  a  singular  one; 2  but  no  objection  appears  to 
have  been  made  on  the  score  of  remoteness,  although  the 
will  sometimes  provided  that  the  sale  should  be  made  by  the 
executors,  and,  should  they  all  die,  then  by  the  executors  of 
the  executors.3  So  in  Farington  v.  Darrel*  Martin,  J.,  says: 
"It  has  been  adjudged  that  if  one  devises  that  his  executor 
or  the  executor  of  his  executor  may  sell  his  land,  and  at  the 
time  of  this  devise  the  executors  of  the  executor  were  not  in 
rerum  natura,  yet  then1  sale  has  been  held  good  and  sufficient." 
To  which  Paston,  J.,  replies:  "That  may  well  be;  for  they  were 
in  esse  at  the  time  that  the  first  executors  died."  5 

§  125.  It  has  been  a  common  notion  that  to  a  certain  extent 
remoteness  of  limitation  was  prevented  in  the  early  times  by 
means  of  a  supposed  rule  that  no  future  interest  could  be 
limited  to  the  unborn  child  of  an  unborn  person,  because  such 
a  limitation  would  be  a  possibility  upon  a  possibility.6  But 

1  Lit.  §§  169,  585,  586.    19  Hen.  tator's  death,  the  estate    to  arise 

VI.  23.     Co.  Lit.  113  a.  under  an  execution  of  the  power 

1  Babington,  C.  J.,  in  Farington  might  by  possibility  not  take  effect 

v.  Dan-el,  9  Hen.  VI.  23,  24,  says:  until  the  expiration  of  fifty  years 

"Est  marveilous  Ley  de  raison:  mes  or  more  after  the  decease  of  the 

ceo  est  le  nature  d'un  devis,  et  de-  first  executor,  the  life  in  being." 

vise  ad  este  use  tout  temps  en  tiel  1  Chance,  Pow.  §  307.    It  does  not 

forme;  et  issint  on  aura  loyalment  appear  that  executory  devises  raised 

franktenement  de  cesty  qui  n'avoit  in  any  other  way  than  by  powers 

rien,  et  en  mesne  le  maniere  come  given  to  executors  were  ever  held 

on  aura  fire  from  flint,  et  uncore  valid.     Thus  hi  the  Prior  of  St. 

mil  fire  est  deins  le  flint:  et  ceo  est  Bartholomew's   Case,    Dyer,   33  a, 

pour  performer  le  darrein  volonte  which    was    determined    hi    1537, 

de  le  devisor."    8.  c.  11  Hen.  VI.  before  the  Statute  of  Wills,  it  was 

12,  13.    So  19  Hen.  VI.  24  6.  held  by  the  Court  of  Common  Pleas 

1  Rex  v.  Croyden   (Gowdchep's  that  a  shifting  executory  devise,  on 

Case),  49  Edw.  III.  16.  breach   of   condition  by   the   first 

4  9  Hen.  VI.  23,  24.  devisee,  was  bad,  because  the  heir 

1  See    38  Ass.   pi.  3;    2  Harg.  only  could  enter  for  breach  of  con- 

Jurid.  Arg.  28,  29.    Such  a  power  dition.    The  land  was  devisable  by 

would   now   be   held   too   remote.  custom.     See  Lewis,  Perp.  77,  78. 
"Supposing    the    second    executor  •  Mr.  Charles  Sweet  in  15  Law 

not  to  have  been  born  at  the  tea-  Quart.    Rev.    71;   29   Law   Quart. 


ORIGIN   AND   HISTORY.  Ill 

the  idea  that  there  cannot  be  a  possibility  on  a  possibility 
seems  to  have  been  a  conceit  invented  by  Chief  Justice  Pop- 
ham.1  The  idea  is  expressed  in  different  forms.  Thus,  it  is 
said,  a  lease  could  not  "commence  upon  a  contingent  which 
depended  upon  another  contingent."2  "A  possibility  which 
shall  make  a  remainder  good,  ought  to  be  a  common  possi- 
bility and  potentia  propinqua."  3  "  A  possibility  cannot  increase 
upon  a  possibility/'4  "Sometimes  one  possibility  shall  not 
beget  another."5  "The  law  will  never  intend  a  possibility 
upon  a  possibility."8  But  in  none  of  these  shapes  does  it 
meet  with  any  countenance  in  the  earlier  cases.7 

§  126.  The  authorities  referred  to  for  this  doctrine  hi  the 
places  above  cited  are  as  follows:  12  Ass.  pi.  5.  A.  let  land 
to  B.  on  condition  that  if  A.  or  his  heirs  paid  B.  or  his  heirs 
ten  pounds  within  a  certain  time,  it  should  be  lawful  for  them 
to  re-enter;  and  if  they  did  not  pay  within  the  term,  and  B. 
paid  A.  ten  pounds  on  a  certain  subsequent  day,  that  then  B. 
should  have  the  fee  "saws  plus  en  la  condition."  Neither  A. 
nor  B.  paid.  A.  entered  after  both  times  (apres  Vun  terme 
et  Vauter),  and  B.  ousted  him.  A.  brought  an  assise,  but 
took  nothing  by  his  writ.  There  is  only  a  short  note  of  the 
case.  It  would  seem  that  A.  failed  because  the  condition 
did  not  provide  that,  on  failure  to  pay  by  B.,  A.  might  enter. 
Whatever  the  ground  of  the  decision,  there  is  not  the  slightest 

Rev.  304;  1  Jarm.  Wills  (6th  ed.)  v.  Blamford,  3  Bulst.  98,  108.    Co. 

287  note  (h);  12  Columbia  Law  Rev.  Lit.  184  a.     "If  anyone  turns  to  the 

199;  while  utterly  condemning  the  passage  in  Coke  upon  Littleton  where 

notion  that  a  limitation  of  a  possi-  it  is  discussed,  I  hope  he  will  under- 

t>ility  upon  a  possibility  is  void,  yet  stand  it  better  than  I  do.    I  confess 

maintains  that  the  rule  in  question  I  do  not  understand  it  now,  and  never 

existed,  based  on  another  reason.  did."    Per  Lindley,  L.  J.,  in  Whitby 

This  matter  is  discussed,   §§  191-  v.  Mitchell,  44  Ch.  D.  85,  92. 

199,  287  et  seq.;  App.  K,  §§  931  et  *  1  Co.  156  b. 

seq.,  post.  *  2  Co.  51  a. 

1  Rector  of  Chedington's  Case,  *  8  Co.  75  a. 

1    Co.    153  a,    156  b.      Cholmley's  *  3  Bulst.  108. 

Case,  2  Co.  50  a,  51  a.    Stafford's  •  Co.  Lit.  184  a. 

Case,  8  Co.  73  b,  75  a.     Lampet's  7  See    Wms.    Real    Prop.    (22d 

Case,  10  Co.  46  b,  50  b.    Blamford  ed.)  370,  371. 


112  THE  RULE  AGAINST  PERPETUITIES. 

reason  to  suppose  it  to  have  been  that  a  contingent  "depended 
upon  another  contingent."  l 

§  127.  William  v.  Florence.*  Osbern  and  Florence  his 
wife  levied  a  fine  of  land,  and  the  conusee  conveyed  the  land 
to  Osbern  and  Florence  for  life,  remainder  to  Geoffrey  the  son 
of  Osbern  in  tail,  remainder  to  Austin  the  brother  of  Geoffrey 
in  tail,  remainder  to  the  heirs  of  Osbern.  In  an  action  against 
Florence,  after  the  death  of  her  husband,  for  possession  of 
the  land,  she  made  default;  and  then  came  one  John,  saying 
that  Florence  had  only  a  life  estate,  that  Geoffrey  and  Austin 
had  both  died  without  issue,  and  that  he  was  entitled  after  the 
death  of  Florence  as  the  heir  of  Osbern,  and  praying  that  he 
might  be  allowed  to  come  in  and  defend.  The  demandant 
replied  that  Geoffrey  the  son  of  Osbern  was  alive,  and  Austin 
his  brother.  Ash,  of  counsel  for  John,  said:  "Your  plea  is 
not  properly  pleaded,  if  you  do  not  say  that  Geoffrey  to  whom 
the  remainder  was  limited  is  alive."  To  which  Pole,  for  the 
demandant,  replied:  "You  have  simply  alleged  that  the  re- 
mainder was  given  hi  tail  to  Geoffrey  the  son  of  Osbern  and 
Austin  his  brother,  and  that  they  are  dead,  and  to  that  we  say 
that  Geoffrey  the  son  of  Osbern  is  alive,  and  Austin,  and  it  is 
enough  for  me  to  traverse  what  you  have  said  in  the  same  words 
as  you  have  used  to  me."  The  counsel  for  John  rejoined: 
"I  acknowledge  that  Geoffrey  the  son  of  Osbern  is  alive  and 
Austin  his  brother  also,  but  I  say  that  their  being  so  ought  not 
to  oust  me,  for  I  say  that  they  were  not  born  at  the  time  of 
the  fine  levied,  but  were  born  long  tune  after  the  fine."  Pole 
then  said:  "You  have  acknowledged  that  they  are  alive  who 
bear  the  same  name  and  surname  as  those  to  whom  you  have 
said  the  remainder  was  given,  and  before  by  your  plea  you  made 
no  mention  of  them."  To  which  John's  counsel  rejoined:  "By 
our  plea  we  have  not  undertaken  to  plead  of  any  others  than 
those  to  whom  the  remainder  was  given  hi  tail,  and  that  cannot 
be  to  others  than  those  who  were  alive  at  the  time  of  levying 
the  fine,  but  as  to  your  pleas  of  the  others,  that  by  their  being 

»  1  Co.  156  6.  »  10  Edw.  III.  45. 


ORIGIN  AND   HISTORY.  113 

alive  I  shall  not  be  received,  now  for  the  time  it  is  enough 
for  me  to  say  that  their  being  alive  does  not  oust  me  from 
being  received."  The  reporter  adds:  "And  afterwards  he  was 
received."  The  fact  seems  to  be  that  the  land  was  conveyed, 
after  the  life  estates,  hi  remainder  to  two  persons  —  Geoffrey 
and  his  brother  Austin  —  who  were  then  living.  A  limita- 
tion to  two  persons,  one  of  the  name  of  Geoffrey  and  the  other 
his  brother  of  the  name  of  Austin,  neither  of  whom  had  been 
born,  might  suggest  itself  as  a  hypothetical  case  to  a  lawyer 
of  the  sixteenth  century,  but  it  is  inconceivable  that  a  baron 
of  the  fourteenth  should  ever  have  actually  settled  his  estate 
in  that  fashion.  This  Geoffrey  and  Austin  died,  and  another 
Geoffrey  and  Austin  were  born,  very  likely  of  the  same  par- 
ents; but  these  latter  could  not  be  the  persons  for  whom  the 
remainder  was  intended,  for  they  were  not  even  born  when 
it  was  created.1 

§  128.  In  18  Edw.  III.  39,  pi.  34,  an  estate  was  given  to 
a  man  and  his  sister  and  the  heirs  of  their  bodies;  hi  24  Edw. 
III.  29,  pi.  17,  an  estate  was  given  to  two  men  and  their  wives 
and  the  heirs  of  their  bodies;  in  44  Edw.  III.,  Fitz.  Ab.  Taile, 
pi.  13,  an  estate  was  given  to  brothers  and  a  sister  and  the 
heirs  of  their  bodies;  and  hi  7  Hen.  IV.  16,  pi.  9,  the  case 
was  put  of  a  devise  to  two  men,  or  to  a  man  and  his  mother, 
or  to  a  man  and  his  daughter,  and  the  heirs  of  their  bodies; 
and  in  all  these  cases  it  was  held  that  the  grantees  had  separate 
inheritances,  because,  as  the  reason  is  given  in  the  last  case, 
the  will  of  the  donor  should  be  preserved,  —  there  is  nothing 
about  a  possibility  on  a  possibility.2 

1  See   Cholmley's   Case,   2  Co.  and  Austin  to  whom  the  remainder 

50  a,  51  6;  Wms.  Real  Prop.  (22d  was  limited  are  alive,  and  though 

ed.)  370,  371.    Perhaps  no  second  there  be  a  Geoffrey  and  Austin 

Geoffrey   and   Austin   were   really  alive  as  alleged,  they  may  not  be 

born  and  the  question  raised  may  the  Geoffrey  and  Austin  to  whom 

have  been  one  of  pleading.    John's  the  remainder  was  limited,  and  for 

objection  is  that  the  demandant's  the  failure  to  allege  that  they  are, 

pleading    is    improper    because    it  John  says  the  pleading  is  bad. 
does  not  allege  that  the  Geoffrey          2  Co.  Lit.  184  a. 


114  THE   RULE   AGAINST  PERPETUITIES. 

§  129.  In  Farington  v.  Darrel,1  Babington,  C.  J.,  to  illus- 
trate the  position  that  the  validity  of  a  devise  must  be  deter- 
mined at  the  death  'of  the  testator,  says  that  if  a  devise  is 
made  to  chantery  or  college,  and  there  is  no  such  chantery  or  col- 
lege, the  devise  is  void,  though  a  chantery  or  college  of  that 
name  be  afterwards  founded.  Here  the  gift  purports  to  be  to 
an  existing  corporation;  if  there  is  no  such  corporation  the 
gift  fails;  and  of  course  it  cannot  be  claimed  by  a  subsequently 
established  corporation,  not  because  there  could  not  be  a  gift 
to  such  a  corporation,  but  because  it  was  not,  in  fact,  the 
corporation  for  which  the  gift  was  intended.2 

§  130.  2  Hen.  VII.  13.  The  passage  referred  to  here  is  a 
remark  of  Serjeant  Keble.  He  says:  "The  remainder  to  the 
right  heirs  of  J.  at  S.  is  good,  because  it  can  be  a  good  re- 
mainder by  common  intendment;  but  if  the  King  grants  to  an 
abbey,  and  there  is  none  such,  the  grant  is  void  notwithstand- 
ing that  it  is  made  afterwards.  And  hi  the  case  of  the  heirs 
of  J.  at  S.,  suppose  when  the  remainder  is  created  that  there 
is  no  J.  at  S.,  and  afterwards  a  J.  at  S.  is  born,  it  [the  remainder] 
is  void,  notwithstanding  J.  at  S.  dies  and  has  heirs  at  the  time 
of  the  remainder."  This  remark  of  Serjeant  Keble  lends 
no  aid  to  the  notion  of  the  invalidity  of  a  possibility  upon  a 
possibility.  If  the  remainder,  instead  of  being  to  the  heirs  of 
J.  at  S.,  had  been  to  J.  at  S.  himself,  and  there  was  no  such 
person  as  J.  at  S.  alive,  the  learned  Serjeant  would  have  con- 
sidered the  remainder  just  as  hi  valid;  this  is  clear  from  the 
case  he  puts  of  the  abbey.  He  means  that  a  gift  to  a  person 
tanquam  in  esse  will  not  take  effect  if  there  is  no  such  person 
living,  for  there  is  no  one  answering  the  description  of  the 
donee.8 

§  131.  In  Lane  v.  Cowper*  (1575),  Wray,  Chief  Justice  of 
the  Queen's  Bench,  and  Gawdy,  J.,  "took  the  diversity,  to 

1  9  Hen.  VI.  23,  24.  Southwood,   1  Roll.  R.  253,  254. 

*  1  Prest.  Abs.  128.    See  Corpus  1  Prest.  Abs.  128. 
Christi  College  Case,  4  Leon.  223.  *  Moore,  103,  104. 

1  Per  Lord  Coke  in  Simpson  v. 


ORIGIN  AND   HISTORY.  115 

wit,  that  a  person  not  in  esse  at  the  beginning  can  take  a 
remainder  by  purchase,  if  he  is  in  esse  before  the  end  of  the 
particular  estate,  so  that  the  limitation  of  the  remainder  is 
in  general  words,  as  'to  the  right  heirs  of  J.  S.,'  or  'to  him 
who  shall  first  come  to  St.  Pauls,'  'to  the  wife  that  shall  be,' 
and  the  like.  But  if  the  limitation  be  in  special  words,  as 
to  'Jane,  the  first  wife  of  J.  S.,'  where  he  has  no  wife  at  the 
time,  or  to  'the  Mayor  and  Commonalty  at  Islington,'  where 
there  is  none  such  at  this  time,  then  although  before  the  end 
of  the  particular  estate  J.  S.  takes  one  Jane  to  wife,  or  Isling- 
ton is  incorporated  by  the  name  of  the  Mayor  and  Common- 
alty, yet  they  will  not  take  the  remainder."  Here  again  the 
gift  is  void,  because  made  to  persons  or  corporations  tanquam 
in  esse  who  are  not  in  esse.1 

§  132.  The  above  §§  126-131  contain  all  the  cases  referred 
to  as  authorities  for  the  theory  that  a  possibility  upon  a  pos- 
sibility is  invalid,  but  Manning  v.  Andrews 2  (1576)  also  de- 
serves attention.  In  that  case  there  was  a  feoffment  before 
the  Statute  of  Uses  to  the  use  of  W.  and  his  wife  J.  for  their 
lives,  and  after  their  death  to  the  use  of  the  heir  of  the  bodies 
of  W.  and  J.  for  life,  then  to  the  use  of  the  heir  of  the  same 
heir,  and  hi  default  of  such  issue  to  the  use  of  the  heirs  of  the 
body  of  W.  and  J.  for  the  life  or  lives  of  every  such  heir  or 
heirs,  and,  for  default  of  such  heirs,  to  the  heirs  of  the  body  of 
W.,  and  in  default,  etc.,  to  the  heirs  of  W.  Condition,  that 
if  "any  of  the  said  heirs"  should  attempt  to  alienate  his  in- 
terest, the  use  limited  to  such  heir  should  be  void  during  his 
life,  and  the  feoffees  should  be  seised  to  the  use  of  the  heir 
apparent  of  the  offender.  After  the  feoffment  W.  had  issue 
T.  and  died.  T.  had  issue  F.  and  P.  After  the  Statute  of 
Uses,  T.,  and  afterwards  F.,  levied  a  fine  to  the  defendant. 
The  feoffees  entered  to  revive  the  use  to  P.,  who  was  F.'s 
heir  apparent,  and  then  P.  entered.  Jeffrey,  J.,  thought  that 

1  See  Jeffrey,  Serj.,  arguendo,  in  91;  Brent  v.  Gilbert,  Dal.  Ill, 
Mutton's  Case,  2  Leon.  223;  Dal.  112. 

*  1  Leon.  256. 


116  THE  RULE  AGAINST  PERPETUITIES. 

an  entry  by  the  feoffees  was  necessary,  and  that  they  were 
debarred  from  entering  by  the  fine.  Wray,  C.  J.,  and  South- 
cote,  J.,  agreed  that  no  entry  by  the  feoffees  was  necessary; 
but  the  Chief  Justice  seems  to  have  thought  that  P.  was 
debarred  from  entry  by  the  fine.  Southcote,  J.,  held  that  P.'s 
entry  was  effectual  to  vest  the  estate  hi  him;  and  neither  of 
the  other  judges  seems  to  have  had  any  doubt  that  the  shifting 
use  over  on  alienation  was  valid,  —  they  differed  only  on  the 
effect  of  the  fine.1  The  case  is  important  as  showing  that  the 
notion  of  the  impossibility  of  limiting  an  estate  to  the  issue 
of  an  unborn  person  had  no  existence  at  that  time. 

§  132  a.  The  existence  of  a  rule  at  common  law,  that  after 
an  estate  for  life  to  an  unborn  child  a  remainder  to  such  child's 
children  is  void,  has  been  of  late  so  positively  asserted  that  it 
is  worth  while  to  quote  the  language  of  the  judges  in  Manning 
v.  Andrews,  to  show  that  no  such  rule  was  known  to  them. 
Gawdy,  J.,  said  "that  every  issue  begotten  betwixt  William 
and  Joan  should  have  an  estate  for  life  successive,  and  a 
remainder  hi  tail  expectant  as  right  heir  of  the  body  of  William, 
and  this  estate  tail  shall  not  be  executed  in  possession  by  reason 
of  the  mesne  remainder  for  life  limited  to  the  heir  of  the  body 
of  William  and  Joan,  and  although  that  these  mesne  remain- 
ders are  but  upon  a  contingent,  and  not  in  esse,  yet  such  regard 
shall  be  had  to  them,  that  they  shall  hinder  the  execution  of  the 
estates  for  life,  and  in  tail  in  possession."  Wray,  C.  J.,  said: 
"If  a  devise  be  made  to  one  for  life,  and  then  to  his  heir  for 
life,  and  so  from  heir  to  heir  in  perpetuam  for  life,  here  are 
two  estates  for  life,  and  the  other  devisees  have  fee,  for  estates 
for  life  cannot  be  limited  by  general  words  from  heir  to  heir, 
but  by  special  words  they  may." 

§  133.  Lord  Coke  has  admitted  that  as  a  general  proposi- 
tion the  statement  that  there  cannot  be  a  possibility  upon  a 
possibility  is  bad  law.  "Coke  moves  another  matter  hi  this 

1  See  1  Sugd.    Pow.   (7th  ed.)      post.     See   15   Law   Quart.   Rev. 
15,  16.    Cf.  also  Wood  v.  Sanders,      73,  note. 
1  Ch.  Gas.  131;  Pollexf.  35;  §  161, 


ORIGIN  AND   HISTORY. 


117 


case  on  Popham's  opinion,  Co.  1,  Rector  de  Chedington,  that 
a  possibility  on  a  possibility  is  not  good,  for  here  in  our  case 
is  a  possibility  on  a  possibility  .  .  .  yet  it  seems  that  it  is 
good,  for  if  Popham's  opinion  should  be  law,  it  would  shake  the 
common  assurances  of  the  land  .  .  .  but  I  agree  that  in  divers 
cases  there  shall  not  be  possibility  upon  a  possibility,  and  he 
puts  the  diversities  put  in  Lampet's  Case,  10  Co.  50  6."  x 

§  134.  The  true  reason  why  before  the  time  of  the  Statutes 
of  Uses  and  Wills  no  objection  of  remoteness  appears  to  have 
been  made  to  any  limitations  is,  that  in  fact  no  need  of  any 
such  restriction  on  the  creation  of  future  estates  was  felt.  In- 
corporeal hereditaments  would  seldom  be  created  to  begin  in 


1  See  Blamford  v.  Blamford,  3 
Bulst.  98,  108,  better  reported  in  1 
Roll.  R.  318,  321. 

As  the  notion  of  a  possibility  on 
a  possibility  had  no  roots  in  the 
law,  so  it  flourished  but  a  short 
time.  In  1681,  Lord  Chancellor 
Nottingham,  in  the  great  Case  of 
the  Duke  of  Norfolk,  said  "that 
there  may  be  a  possibility  upon  a 
possibility  and  that  there  may  be  a 
contingency  upon  a  contingency  is 
neither  unnatural  or  absurd  in  it- 
self; but  the  contrary  rule  given  as 
a  reason  by  my  Lord  Popham  in  the 
Rector  of  Chedington's  Case,  1  Co. 
156  b,  looks  like  a  reason  of  art; 
but  in  truth  has  no  kind  of  reason 
in  it,  and  I  have  known  that  rule 
often  denied  in  Westminster  Hall." 
3  Ch.  Cas.  29.  See  Mayor  of  Lon- 
don v.  Alford,  Cro.  Car.  576,  577; 
Love  v.  Windham,  1  Sid.  450,  451; 
Thellusson  v.  Woodford,  4  Ves.  227, 
327. 

On  the  revival  of  the  doctrine 
as  the  parent  of  the  alleged 
rule  that,  at  common  law,  a  re- 
mainder to  the  child  of  an  unborn 
person  could  not  be  limited  after 


a  remainder  for  life  to  its  father, 
see  §§  191  et  seq.,  post. 

Except  as  the  doubtful  parent 
of  the  alleged  rule  that  life  estates 
cannot  be  limited  to  successive  gen- 
erations, no  one  can  now  be  found 
to  defend  it.  Fearne,  C.  R.  251, 
Butler's  note.  Cole  v.  Sewell,  4  Dr. 
&  W.  1,  32.  Egerton  v.  Brownlow, 
4  H.  L.  C.  1,  54.  Re  Ashforth, 
[1905]  1  Ch.  535,  543.  Third  Real 
Prop.  Comm.  Rep.  29.  1  Prest. 
Abs.  128.  1  Leake,  Land  Law,  335. 
Sugd.  Pow.  (8th  ed.)  393,  394. 
Wms.  Real  Prop.  (22d  ed.)  370,  371. 
3  Enc.  Laws  of  Eng.  (2d  ed.)  518. 
Whitby  v.  Mitchell,  42  Ch.  D.  494; 
44  Ch.  D.  (C.  A.)  85.  In  re  Frost, 
43  Ch.  D.  246.  6  Law  Quart.  Rev. 
410,  424.  14  Law  Quart.  Rev.  234. 
25  Law  Quart.  Rev.  385,  393. 
Cf.  Challis,  Real  Prop.  (3d  ed.) 
118. 

As  to  the  later  growth  of  the 
idea  that  future  limitations  of  re- 
mainders are  governed  by  this  sup- 
posed rule,  and  as  to  the  present 
condition  of  the  law  upon  the  sub- 
ject, see  §§  284-298  h,  post,  which 
should  be  consulted  here. 


118  THE   RULE   AGAINST  PERPETUITIES. 

futuro.  Terms  for  years  were  generally  short,  present  inter- 
ests. Executory  devises  under  powers  given  to  executors  could 
arise  only  in  those  comparatively  rare  localities  where  land 
was  devisable.  Contingent  remainders  were  probably  for  a 
long  time  unknown  to  the  law.1  It  had  been  adjudged,  how- 
ever, before  1430  that  a  remainder  to  the  heirs  of  a  living 
person  was  good.2  But  contingent  remainders,  though  allowed 
as  legal,  were  seldom  employed,  even  after  the  Statute  of 
Uses.  Mr.  Joshua  Williams  says  that  in  all  marriage  settle- 
ments prior  to  the  reign  of  Queen  Mary,  who  came  to  the  throne 
in  1553,  "the  remainders  appear  to  be  uniformly  vested,  the 
estates  tail  being  given  to  living  parties,  and  not  to  sons  or 
daughters  unborn."  3  From  Chudleigh's  Case  4  it  appears  that 
in  1556  a  feoffment  was  made  to  uses  giving  estates  tail  to  the 
successive  (unborn)  children  of  living  persons,  substantially 
in  the  form  of  a  modern  English  settlement;  and  1556  is  also 
the  date  of  the  earliest  settlement  traced  by  Mr.  Williams 
in  which  contingent  remainders  to  unborn  persons  occur.5 
Even  had  contingent  remainders  been  more  frequent,  the  ease 
with  which  the  tenant  for  life  could,  by  feoffment,  fine,  or 
recovery,  destroy  the  particular  estate  necessary  to  support 
&  contingent  remainder  would  have  prevented  their  becoming 
practically  inconvenient,  however  remote.6 

2.  Introduction  of  Conditional  Limitations. 

§  135.  As  has  been  shown,7  executory  devises  had  long  been 
recognized  as  possible  in  localities  where  lands  were  devisable, 

1  §  100,  ante.  ed.)  518,  519,  that  originally  no  re- 

1  Anon.,   cited  in  Farington  v.  mainders  to  uncertain  persons  were 

Barrel,  9  Hen.  VI.  23,  24.    32  Hen.  allowed,  and  that  when  they  were 

VI.  Fitz.  Ab.  Feoff.  &  Faite,  pi.  introduced,  they  were  confined  to 

99.  remainders  after  a  vested  estate  of 

1  1  Jurid.  Soc.  Papers,  47.  freehold.    And  see  the  same  author's 

4  1  Co.  120  a.  article,  14  Law  Quart.  Rev.  234,  238. 

1  1  Jurid.  Soc.  Papers,  47.  On  any  objection  to  the  remoteness 

6  Williams  on  Seisin,  190,  191.  of  rights  of  entry  on  common-law 

See  Mr.  Cyprian  Williams's    con-  conditions,  see  §§  299  et  seq.,  post. 

jecture,  3  Enc.  Laws  of  Eng.  (2d          T  §  124,  ante. 


ORIGIN  AND   HISTORY. 


119 


but  it  was  not  until  after  the  passage  of  the  Statutes  of  Uses 
(1535)  and  of  Wills  (1540)  that  contingent  future  limitations 
of  freeholds,  other  than  remainders,  became  valid  generally. 

§  136.  Springing  uses  seem  to  have  been  first  recognized  in 
Anon.1  (1538),  where  a  covenant  to  stand  seised  to  the  use  of 
B.  on  the  performance  of  an  act  by  B.  was  held  to  raise  the 
use  on  the  happening  of  the  contingency.2 

§  137.  In  Anon.3  (1552)  there  was  a  feoffment  to  the  use 
of  W.  and  his  heirs  until  A.  paid  a  sum  of  money,  and  then 
to  A.  and  his  heirs.4  It  was  assumed  by  all  that  this  was  a 
good  shifting  use.5 


1  Bro.  Ab.  Feoff,  al  Uses,  340, 
pi.  50. 

2  See    Gilb.    Uses    (Sugd.    ed.) 
164,  note.    So  Wood's  Case,  in  the 
Court  of  Wards  (1560),  cited  1  Co. 
99  a;  and  see  Mutton's  Case,  Dyer, 
274  6;  2  Leon.  223;  Dal.  91;  Moore, 
96,  376;  1  And.  42  (1573);  Woodliff 
v.  Drury,  Cro.  El.  439;  sub  nom. 
Woodlet  v.  Drury,  2  Roll.  Ab.  791, 
pi.    1    (1595);    Mills    v.    Parsons, 
Moore,  547  (1595);  Blackbourn  t>. 
Lassels,  Cro.  El.  800  (1600);  Wood 
v.    Reignold,    Cro.    El.    764,    854 
(1601);  Lewis,  Perp.  57,  58. 

3  Bro.  Ab.  Feoff,  al  Uses,  339, 
pi.  30. 

4  The    question    discussed   was 
whether  the  estate  could  vest  in 
A.  without  an  entry  on  the  part 
of  the  feoffees  to  uses.    This  point 
was  often  afterwards  mooted.    See 
Brent's  Case,   2  Leon.   14;  Dyer, 
340  a;  Manning  v.  Andrews,  1  Leon. 
256;  Chudleigh's  Case,  1  Co.  120  a; 
1  And.  309;  Pop.  70;  Jenk.  276; 
and  the  other  cases  cited  1  Sugd. 
Pow.   (7th  ed.)  10-39.     It  is  now 
generally  conceded  that  no  entry 
by  the  feoffees  is  necessary.     The 
matter     does     not     concern     us 
here. 


8  See  Brent  v.  Gilbert,  Dal.  Ill 
(1574);  Brent's  Case,  2  Leon.  14; 
Dyer,  340  a  (1575);  Manning  v. 
Andrews,  1  Leon.  256  (1576); 
Bracebridge's  Case,  1  Leon.  264; 
sub  nom.  Harwell  v.  Lucas,  Moore, 
99  (1578);  Stonley  v.  Bracebridge, 
1  Leon.  5  (1583);  Smith  v.  Warren, 
Cro.  El.  688  (1599);  Anon.,  Moore, 
608;  Anon.,  13  Co.  48  (1609);  s.  c., 
semble,  Jenk.  328;  Sympson  v. 
Sothern,  Cro.  Jac.  376;  2  Bulst. 
272;  sub  nom.  Simpson's  Case, 
Godb.  264;  sub  nom.  Simpson  v. 
Southwood,  1  Roll.  R.  109,  137,  253 
(1615);  Allen's  Case,  Ley,  55  (1617); 
Lewis,  Perp.  58-60. 

Bostock's  Case,  Ley,  54  (1616). 
In  the  Court  of  Wards.  Fine  to  the 
use  of  Edward  Bostock  for  life, 
remainder  to  the  use  of  his  heirs 
male  on  the  body  of  his  wife  Mar- 
gery begotten,  with  remainders 
over.  "And  if  the  said  Edward 
should  fortune  to  die  (living  the 
said  Margery),  that  then  the  said 
fine  should  be  ...  to  the  use  of 
the  said  Margery,  for  term  of  life, 
and  after  her  decease  to  the  uses 
aforesaid."  Edward  Bostock  died, 
leaving  Margery  his  widow,  and 
an  infant  son.  Held,  by  Coke,  C. 


120 


THE   RULE  AGAINST  PERPETUITIES. 


§  138.  In  Anon.1  (1555)  and  Wilford  v.  Wilford  *  (1555) 
there  were  executory  devises,  but  in  neither  case  does  their 
validity  appear  to  have  been  drawn  in  question.*  In  Oclie's 
Case4  (1567)  the  validity  of  an  executory  devise  is  said  to 
have  been  decided.  Later  cases  in  which  executory  devises 
were  recognized  as  valid  are  given  in  the  note.6 

§  139.  No  question  as  to  the  remoteness  of  a  conditional 
limitation  of  a  freehold  estate  in  freehold  or  copyhold  land, 
either  by  way  or  use  of  devise,  appears  to  have  ever  come 
before  the  courts  until  Snow  v.  Cutler6  in  1664.  The  doctrine 
of  remoteness  was  brought  to  the  attention  of  the  courts 
in  other  ways.  In  most  of  the  cases  of  conditional  limita- 
tions they  were  not  in  fact  such  as  are  forbidden  by  the  modern 
Rule  against  Perpetuities,  but  in  Manning  v.  Andrews  7  the 
limitation  was  what  would  now  be  considered  too  remote. 


J.,  Hobart,  C.  J.,  and  Tanfield, 
C.  B.,  that  the  King  was  not  en- 
titled to  wardship  or  marriage  of 
the  son  during  the  life  of  Margery. 
Mr.  Lewis,  Perp.  150,  151,  speaks 
of  this  case  as  "a  clear  adjudica- 
tion of  the  validity  of  a  shifting 
use."  But  the  use  to  Margery, 
though  somewhat  inartificially  ex- 
pressed, was  not  a  shifting  use  at 
all,  but  simply  an  ordinary  vested 
remainder  for  life,  limited  by  way 
of  use.  Such  evidently  was  the 
opinion  of  the  Court.  They  say, 
"The  estate  of  Margery  is  an  im- 
mediate estate  for  life." 

1  Dyer,  124  a.  This  case  seems 
to  be  the  same  as  Hinde  v.  Lyon, 
reported  2  Leon.  11;  3  Leon.  64, 
70,  as  having  been  decided  in  1578. 
See  Challis,  Real  Prop.  (3d  ed.)  170. 

*  Dyer,  128  a. 

»  See  also  Boulton's  Case  (1564), 
cited  by  counsel  from  Egerton'a 
Reports  in  Pells  v.  Brown,  2  Roll. 
R.  216,  217;  Palm.  131,  132. 


4  Cited  in  Pells  v.  Brown,  2  RolL 
R.  216,  220. 

6  Wellock    v.   Hammond,    Cro. 
El.  204;  2  Leon.   114   (1590)   (see 
Boraston's  Case,  3  Co.  19  a,  20  6). 
Hoe    v.    Garrell    (1591),    cited    in 
Pells  v.  Brown,  2  Roll.  R.  216,  220; 
Palm.    131,    136.      Fulmerston    v. 
Steward   (1596),   cited  in  Pells  v. 
Brown,  Cro.  Jac.  590,  592;  Palm. 
131,  135;  2  Roll.  R.  216,  218.    Pur- 
slowe  v.  Parker,  2  Roll.  Ab.  253, 
pi.  2;  Id.  793,  pi.  2  (1600);  cited 
sub  nom.  Pinsloe  v.  Parker,  2  Roll. 
R.  218,  219;  su    nom.  Mullineux'a 
Case,  in  Palm.  136.     Pay's  Case, 
Cro.  El.  878;  sub  nom.  Payne  v. 
Ferrall,     Noy,     43     (1602).       See 
Lewis,  Perp.  80,  81. 

•  1  Lev.  135;  1  Keb.  752,  800, 
851;  2  Keb.  11,  145,  296;  T.  Raym. 
162;  sub  nom.  Snow  v.  Tucker,  1 
Sid.  153;  §  165,  post. 

7  1  Leon.  256,  stated  hi  §§  132, 
132  a,  ante. 


ORIGIN  AND   HISTORY.  121 

Perhaps  this  was  also  the  case  with  Fulmerston  v.  Steward.1 
In  Pay's  Case 2  there  was  a  devise  to  A.  from  Michaelmas 
following  the  testator's  death  for  five  years,  and  then  to  B. 
and  his  heirs.  It  was  held  by  all  the  judges  of  the  Court 
of  Queen's  Bench,  without  argument,  that  the  springing 
executory  devise  (or  remainder,  as  it  was  called)  to  B.  was 
good.  It  will  be  observed  that  this  executory  devise  might 
possibly  not  have  vested  in  B.  and  his  heirs  within  the  life 
of  any  person  living  at  the  death  of  the  testator,  although 
it  must  have  vested  at  Michaelmas  following  the  testator's 
death.8 

3.  Meaning  of  "Perpetuity" 

§  140.  Estates  in  fee  simple  were  at  one  time  to  a  consider- 
able extent  inalienable,  but  the  Statute  Quia  Emptores,  18 
Edw.  I.  c.  1  (1289),  enabled  tenants  in  fee  simple  to  alienate 
their  land  at  pleasure;  and  provisions  expressly  introduced 
into  conveyances  for  the  purpose  of  restraining  alienation  were 
held  invalid. 

§  141.  The  Statute  De  Doras,  Westm.  I.  13  Edw.  I.  c.  1 
(1285),  which  created  estates  tail,  enacted  that  they  could  not 

1  Cited  in  Pells  v.  Brown,  Cro.  que  Cleere  faiera  divers  acts,  et 
Jac.  590,  592;  Palm.  131,  135;  2  sur  condition  que  si  Cleere  ou  his 
Roll.  R.  216,  218.  The  doubt  as  heirs  ne  perform  le  condition,  que 
to  Fulmerston  v.  Steward  arises  son  estate  cessera,  et  les  executors 
from  the  lack  of  agreement  in  the  averont  le  terre,  et  ceo  convey  al 
reports.  As  stated  by  Croke,  Sir  ascun  de  son  nosme."  Rolle  gives 
Richard  Fulmerston  devised  to  Sir  the  devise  to  Sir  Edward  and  his 
Edward  Cleere  and  his  wife,  and  heirs,  as  on  condition  "that  if  he 
the  heirs  of  Sir  Edward,  certain  does  not  perform,"  etc.  If  the  con- 
lands  in  Elden,  "upon  condition  dition  was  one  that  the  heirs  of  Sir 
they  should  assure  lands  in  such  Edward  could  perform  (which  is 
places  to  his  executors  and  their  doubtful  on  the  reports),  the  limi- 
heirs  to  perform  his  will;  and  if  he  tation  over  would  now  be  consid- 
(stc)  failed,  then  he  devised  the  ered  too  remote.  If,  on  the  other 
said  lands  in  Elden  to  his  executors  hand,  it  was  to  be  performed,  if  at 
and  their  heirs."  The  limitation  all,  in  his  lifetime,  it  would  be  valid, 
to  the  executors  was  held  a  good  *  Cro.  El.  878;  sub  nom.  Payne 
executory  devise.  Palmer  states  v.  Ferrall,  Noy,  43. 
the  devise  as  being  "sur  condition  *  See  §  176  et  seq.,  post. 


122  THE   RULE  AGAINST  PERPETUITIES. 

be  barred  by  fine,  but  in  Tattarum's  Case,  12  Edw.  IV.  19, 
pi.  25  (1472),  the  judges,  who,  for  some  reason  or  other,  were 
always  favorable  to  the  transfer  of  land,  held  that  estates  tail 
could  be  barred  by  a  recovery;  and  at  last,  by  the  Statutes 
of  Fines,  4  Hen.  VII.  c.  24  (1489)  and  32  Hen.  VIII.  c.  36 
(1540),  the  same  effect  was  allowed  to  fines  levied  with  cer- 
tain formalities. 

§  141  a.  As  early  at  least  as  the  fifteenth  century,  it  was 
settled  that  alienation  of  a  fee  simple  could  not  be  restrained 
indirectly  by  means  of  a  condition  or  limitation  any  more 
than  it  could  be  directly.1  But  in  an  estate  tail  a  condition 
that  the  tenant  should  not  make  a  feoffment,  or  a  clause  of 
cesser  upon  his  making  a  feoffment,  was  good.  As,  however, 
not  only  would  an  estate  tail  be  barred,  but  all  conditions  and 
limitations  annexed  to  it  would  be  destroyed  by  a  common 
recovery  or  by  a  fine  under  the  Statute,  they  became  practi- 
cally valueless  unless  a  tenant  in  tail  could  be  restrained  from 
suffering  a  recovery  or  levying  a  fine.  This  could  not  be 
done  directly,  but  attempts  began  to  be  made  towards  the  end 
of  the  sixteenth  century  to  attach  to  an  estate  tail  conditions 
against  going  about  to  levy  a  fine  or  suffer  a  recovery.  These 
attempts  were  not  successful.2 

1  Gray,   Restraints    on    Aliena-  A.  takes  a  fee,  or  that  A.  takes  a 

tion  (2d  ed.),  §  19.     And  so  it  was  life  estate,  and  his  heir  a  remainder 

said  by  Popham,  C.  J.,  in  Chud-  in  fee  (which,  by  the  Rule  in  Shel- 

leigh's Case,  1  Co.  120 o,  138  (1595).  ley's  Case,  would  give  A.  the  fee); 

"If  a  feoffment  be  made  to  the  use  or  that  A.  took  a  hie  estate  and 

of  A.  for  life,  and  after  to  the  use  his  heir  a  life  estate  with  resulting 

of  every  person  who  should  be  his  use  in  remainder  to  the  feoffor  in 

hen-,    one    after    another,    for    the  fee  are  matters  which  will  be  dealt 

term  of  the  life  of  every  such  heir  with,    in    the    discussion    of     the 

only;  hi  this  case  if  thia  limitation  question  whether  the  validity  of  a 

should    be    good,    the    inheritance  remainder  to  an  unborn  child  and 

would  be  in  nobody;  but  this  limita-  the  invalidity   of  a   following  re- 

tion  is  merely  void,  for  the  limita-  mainder  to  its  child  depends  upon 

tion  of  an  use  to  have  a  perpetual  the   Rule   against   Perpetuities   or 

freehold  is  not  agreeable  with  the  upon  some  independent  rule.     See 

rule   of    law  in  estates  in  posses-  §§  298  et  seq.,  App.  K,  §  937. 

sion."      Whether    this    dictum    is  *  Gray,   Restraints    on    Aliena- 

law,  and  whether   it   means   that  tion,  §§  75-77. 


ORIGIN  AND  HISTORY.  123 

§  141  6.  In  the  Essay  on  the  Use  of  the  Law  (commonly  but 
perhaps  wrongly  attributed  to  Lord  Bacon),  published  in  1629, 
it  is  said:  "There  is  started  up  a  device  called  perpetuity;  which 
is  an  entail  with  an  addition  of  a  proviso  conditional  tied  to  his 
estates,  not  to  put  away  the  land  from  the  next  heir;  and,  if  he 
do,  to  forfeit  his  own  estate.  Which  perpetuities,  if  they  should 
stand,  would  bring  in  all  the  former  inconveniences  of  entails 
that  were  cut  off  by  the  former  mentioned  statutes."  * 

§  141  c.  Three  of  these  cases  came  before  the  courts  during 
the  last  few  years  of  the  sixteenth  century:  Germin  v.  Ascot* 
Cholmeley  v.  Humble,3  in  1595,  and  Corbet's  Case*  in  1599. 
In  the  first  two  of  these  cases  the  condition  was  held  invalid 
as  "repugnant; "  so  it  was  in  the  last  also,  but  here  the  word 
"perpetuities"  occurs  twice.  The  reporter  says,  "Divers 
matters  were  moved  by  the  justices  in  their  argument  con- 
cerning the  general  case  of  perpetuities,"  and  Glanville,  J., 
said  that  "Richill,  who  was  a  judge  hi  the  time  of  Rich.  II., 
and  Thirning,  who  was  chief  justice  of  the  Common  Pleas  in 
the  time  of  Henry  IV.,  intended  to  have  made  perpetuities, 
and,  upon  forfeiture  of  the  estate  tail  of  one  of  their  sons,  to 
have  given  the  remainder  and  entry  to  another." 6 

§  141  d.  These  attempts  of  a  feoffor,  donor,  or  testator,  to 
prevent  alienation  for  an  indefinite  period,  having  failed,  it 
occurred  to  some  ingenious  person  that  it  was  perhaps  possible 
to  keep  control  over  the  ownership  of  property  for  a  time  by 
granting  an  estate  for  life  with  contingent  remainders,  for,  as 
contingent  remainders  were  not  transferable,  no  alienation  of 
the  fee  could  take  place  until  they  vested.  This  device  would 
not  work  at  common  law,  because,  although  contingent  re- 
mainders were  not  transferable,  they  were  destructible 6  by  the 
life-tenant;  but  it  was  hoped  that  advantage  might  be  taken 

1  7  Bacon's  Worka  (Spedding's  8  See  1  Tiffany,  Real  Prop, 
ed.)  491.  §  152. 

1  Moore,  364.  •  On     the    meaning    of     "de- 

1  Id.  592.  structible"  when  it  is  said  that  a 

4  1  Co.  83  6.  contingent  remainder  is  destructi- 

ble, see  §  101,  note,  ante. 


124  THE  RULE  AGAINST  PERPETUITIES. 

of  the  Statute  of  Uses,  and  that  contingent  remainders  limited 
by  way  of  use  would  be  held  indestructible.  This  question 
was  presented  in  Chudleigh's  Case,1  "commonly  called  the 
Case  of  Perpetuities,"  to  all  the  judges,  but  they  held  that 
contingent  remainders  limited  by  way  of  use  were  as  destruct- 
ible as  if  limited  at  common  law. 

§  141  e.  In  Corbet's  Case  and  Chudleigh' s  Case  the  term 
"perpetuity"  seems  to  have  been  used  for  the  first  time  in 
our  law,  and  it  will  be  seen  that  there  were  two  kinds  of  per- 
petuities: First,  An  estate  tail  with  a  condition  or  clause  of 
cesser  intended  to  prevent  alienation.  Second,  A  future  con- 
tingent interest  limited  by  way  of  use. 

The  Court  quashed  both  these  kinds  of  perpetuities,  the  first 
by  declaring  that  the  condition  or  clause  of  cesser  was  invalid, 
and  the  second  by  declaring  that  contingent  interests  limited 
by  way  of  use  were  destructible.2 

§  141  /.  The  judgment  as  to  the  first  kind  of  perpetuities 
has  stood  unshaken;  it  has  always  been  law  and  is  law  to-day.5 
But  we  shall  see  that  the  ingenuity  of  conveyancers,  aided  by 
the  inadvertence  of  the  judges,  created  a  class  of  future  interests 
which  the  courts  held  to  be  indestructible;  that  thereupon  it 
became  necessary  to  make  a  new  rule  for  the  restraint  of  inde- 
structible future  interests;  and  that  this  rule  is  the  Rule  against 
Perpetuities.4 

4.   Conditional  Limitations  at  first  held  destructible  like 
Contingent  Remainders. 

§  142.  No  difference  on  the  score  of  destructibility  was  at 
first  felt  to  exist  between  remainders  limited  by  way  of  use 

1  1  Co.  120  a.  »  See  Gray,  Restraints  on  Alien- 

*  See  1    Jarm.   Wills    (6th  ed.)  ation,  §  77. 

281  et  seq.;  15  Law  Quart.  Rev.  71;  *  Cf.  Mr.  Williams's  suggestive 

12  Columbia  Law  Rev.  203;  Scrut-  note  to  his  article  in  14  Law  Quart, 

ton,  Land  in  Fetters,  123;  3  Enc.  Rev.  234,  240. 

Laws  of  Eng.  (2d  ed.)  519;  11  Enc.  On  the  difficulties  arising  from 

Laws  of  Eng.  (2d  ed.)  66.  confounding    these    two    kinds    of 

perpetuities,  see  §§  278  et  seq.,  post. 


ORIGIN  AND  HISTORY.  125 

and  conditional  limitations.  In  Brent  v.  Gilbert l  (1574) 
there  was  a  feoffment  to  the  use  of  A.  and  of  such  woman  as 
should  be  his  wife  at  his  death,  for  their  lives,  with  remainders 
over.  A.  levied  a  fine,  married  B.,  and  died.  The  feoffees 
entered.  It  was  held  by  the  Court  of  Queen's  Bench  that 
the  entry  of  the  feoffees  revived  the  use  to  B.  In  Brent's  Case z 
(1575)  the  statement  of  facts  was  the  same,  except  that  the  limi- 
tation was  not  to  the  use  of  A.  and  of  such  woman  as  should 
be  his  wife  at  his  death,  but  to  the  use  of  A.  and  such  woman  as 
he  shall  marry,  and  except  also  that  it  appeared  that  A.,  before 
levying  the  fine,  made  a  feoffment  in  which  the  feoffees  joined. 
In  the  Common  Pleas,  Dyer,  C.  J.,  Manwood,  and  Monson,  JJ. 
(Harper,  J.,  dissenting)  held  that  if  the  entry  of  the  feoffees 
was  necessary  to  revive  the  use,  they  were  debarred  from 
entry;  and  Dyer,  C.  J.,  and  Manwood,  J.,  thought  such  entry 
was  necessary.  There  is  no  indication  that  the  opinions  of 
the  judges  would  have  been  altered  if  B.  had  had  a  remainder 
instead  of  a  shifting  use.  Indeed  it  is  said  that  B.  "shall 
take  by  way  of  remainder."  3 

§  143.  In  Woodliff  v.  Drury*  decided  in  1595,  not  long 
after  Chudleigh's  Case,  there  was  a  feoffment  to  the  use  of  the 
feoff  or  "and  A.  his  feme  that  should  be  after  their  marriage, 
and  of  the  heirs  of  their  bodies,"  and  the  feoff  or  married  A. 
It  was  held  in  the  Queen's  Bench  that  A.  would  take  by  this 
limitation  of  the  use.  All  the  justices  said:  "By  the  marriage 
the  new  use  shall  arise  and  vest,  if  there  be  no  act  in  the  mean- 
time to  destroy  that  future  use  (as  it  was  in  Chudley's  Case)," 
thus  showing  that  no  distinction  had  then  occurred  to  the  Court 
between  remainders  limited  by  way  of  use  and  conditional 
limitations.  They  were  supposed  to  be  alike  destructible. 

§  144.  The  first  indication  of  the  idea  that  a  conditional 
limitation  of  a  freehold  interest  was  indestructible  appears  in 

1  Dal.  111.  Garrell    (1591),    cited   in   Pells   v. 

1  2  Leon.  14;  Dyer,  340  a.  Brown,  2  Roll.  R.  216,  220;  Palm. 

8  2   Leon.    ]6.     See    Dillon   v.  131,  136. 

Fraine,  Pop.  70,  76;  1  Sugd.  Pow.          4  Cro.  El.  439;  sub  nom.  Wood- 

(7th  ed.)    13-15;   and   cf.   Hoe  v.  let  v.  Drury,  2  Roll.  Ab.  791,  pi.  1. 


126  THE   RULE  AGAINST  PERPETUITIES. 

Smith  v.  Warren1  (1599).  In  that  case  a  fine  was  levied  to 
the  use  of  the  conusee  and  his  heirs  on  condition  that  he  would 
pay  an  annuity  to  the  conusor,  and  on  default  of  payment  the 
land  should  be  to  the  use  of  the  conusor  for  his  life,  and  one 
year  over.  The  conusee  made  a  feoffment  in  fee;  the  annuity 
was  not  paid,  and  the  conusor  entered  on  the  feoffee's  lessee. 
The  Court  of  Common  Pleas  held  that  the  feoffment  had 
not  destroyed  the  use  to  the  conusor,  "for  it  is  a  charge  or 
burden  upon  the  land,  which  goes  along  with  the  land,  in 
whosesoever  hands  it  comes.  And  being  limited  to  the  con- 
usor himself,  Glanville  [J.]  conceived  it  to  be  a  condition 
unto  him;  but  if  it  had  been  to  a  stranger,  to  have  arisen  upon 
such  a  condition,  the  non-performance  thereof  had  been  a  spring- 
ing [or,  as  we  should  now  say,  "shifting"]  use  unto  him;  for 
now  it  is  merely  a  tie  and  charge  upon  the  land,  which  is  not 
destroyed  by  the  feoffment;  and  although  it  be  a  future  use, 
it  may  be  well  raised  upon  non-performance  of  the  condition; 
as  it  was  adjudged  in  Bracebridge' s  Case."  2  The  springing 
use  here  was  preserved  under  circumstances  in  which,  accord- 
ing to  Chudleigh's  Case,  a  remainder  limited  by  way  of  use 
would  have  been  destroyed.  The  fact  that  the  use  arose  as  a 
penalty  for  breach  of  a  condition  in  favor  of  the  grantor  seems 
to  have  had  some  influence  —  it  is  hard  to  say  precisely  what 
—  on  the  decision. 

§145.  Purslowe  v.  Parker3  (1600).  Devise  of  rents  out 
of  land;  if  the  heir  pay  the  "said  annuities,"  he  to  have  the 
land;  if  he  do  not  pay  them,  then  the  executors  to  have  it. 
The  heir  made  a  feoffment  of  the  land,  and  the  annuities  were 
not  paid.  It  was  held  by  the  Court  of  Queen's  Bench  that 
the  feoffment  had  not  destroyed  "the  contingent  remainders," 
"for  there  is  a  diversity  between  a  contingent  remainder  which 

1  Cro.  El.  688.  •  2  Roll.  Ab.  253,  pi.  2;  Id.  793, 

1  This    is    not    Bracebridge    v.  pi.    2;   cited   sub   nom.   Pinsloe  v. 

Cook,  Plowd.  416,  as  stated  in  the  Parker,  2   Roll.   R.  218,  219;  sub 

margin,  but  Bracebridge's  Case,  1  nom.     Mullineux's     Case,     Palm. 

Leon.  264.  136. 


ORIGIN  AND  HISTORY.  127 

depends  on  a  limitation  and  contingent  uses,  for  the  feoffment 
in  this  case  has  not  done  away  the  limitations  which  are  to 
persons  known  with  certainty,  between  whom  there  is  a  privity 
as  in  this  case."  *  In  theraccount  given,  2  Roll.  R.  219,  the 
distinction  is  still  more  clearly  stated  to  be  between  a  limita- 
tion to  persons  certain  which  is  not  destroyed  by  a  feoffment, 
and  a  limitation  to  a  person  uncertain  which  is  destroyed. 
No  difference  between  remainders  limited  by  way  of  use  and 
conditional  limitations  is  taken.2 

§146.  Wood  v.  Reignold*  (1601).  A.  covenanted,  in  con- 
templation of  marriage  with  B.,  to  stand  seised  of  land  to  the 
use  of  himself  and  his  heirs  until  marriage,  and  then  to  the  use 
of  himself  and  B.  and  the  heirs  of  his  body.  A.  then  let  the 
land  for  years  to  C.,  married  B.,  and  died.  Popham,  C.  J., 
and  Gawdy  and  Clench,  JJ.,  were  of  opinion  that  the  lease 
bound  the  springing  use  but  did  not  destroy  it.  Fenner,  J., 
thought  the  use  was  neither  destroyed  nor  bound.  This  was 
because  the  making  of  a  lease  did  not  destroy  or  affect  the 
seisin  of  the  freehold.  Remainders  limited  by  way  of  use  are 
not  destroyed  by  a  lease.  This  was  held  six  years  later  by 
the  same  court  in  BouM  v.  Wynston.*  It  was  assumed  that 
if  A.  had  made  a  feoffment  instead  of  a  lease,  the  shifting  use 
would  have  been  destroyed.  "If  a  freehold  be  conveyed  to 
one  upon  consideration,  the  future  use  shall  not  rise;  for 
there  is  not  any  person  seised  to  that  use  when  it  should 
arise." 5 

§  147.  Smith  v.  Warren 6  is  the  only  early  case  which  favors 
any  distinction  on  the  score  of  destructibility  between  remain- 
ders and  conditional  limitations;  and  no  suggestion  that  the 

1  2  Roll.  Ab.  793.  1  Co.  66  6,  which  is  cited,  is  no  au- 

2  This    notion    that  contingent  thority  for  such  a  distinction, 
interests  are  destructible  when  the          *  Cro.  El.  764,  854. 
contingency  has  reference  to  per-  *  Cro.  Jac.  168;  sub  nom.  Bolls 
sons,  but  are  not  destructible  when  v.  Winton,  Noy,  122;  2  Roll.  Ab. 
the  contingency  has  reference  to  793  (1607).    But  see  Barton's  Case, 
events,  emerges  here  for  the  sole  Moore,  742,  contra. 

time  in  the  law.     Archer's  Case,  5  Per  Fenner,  J.,  Cro.  El.  765. 

•  Cro.  El.  688;  §  144,  ante. 


128  THE   RULE   AGAINST  PERPETUITIES. 

invalidity  of  a  future  limitation  of  real  estate  is  dependent 
upon  its  remoteness  appears  until  much  later.1 

5.  Executory  Devises  of  Terms  introduced. 

§  148.  As  has  been  said,  it  was  in  the  discussion  of  execu- 
tory devises  of  chattels  real  that  the  Rule  against  Perpetuities 
had  its  origin  and  took  its  shape.2  Although  chattels  real 
were  always  devisable  at  common  law,  no  attempt  to  limit  an 
executory  devise  of  them  is  to  be  found  in  the  books  till  about 
the  time  of  the  Statute  of  Wills.  But  there  is  a  case  where  a 
future  bequest  of  the  use  of  a  chattel  personal  was  held  good.3 
A  distinction  was  taken  between  the  bequest  of  a  chattel  per- 
sonal to  A.  for  life,  which  passed  the  absolute  interest  to  A., 
and  admitted  no  executory  bequest;  and  a  gift  of  the  use  of  a 
chattel  personal  to  A.  for  life,  which  gave  A.  the  occupation 
only,  and  left  the  title  in  the  executor.  But  in  Paramour 
v.  Yardley 4  it  is  said  that  a  devise  of  the  occupation  of  a  term 
was  the  same  as  a  devise  of  the  land  itself,  so  that  this  dis- 
tinction could  not  be  availed  of  for  the  establishment  of  ex- 
ecutory devises  of  leaseholds.  It  now  remains  to  trace  the 
history  of  their  gradual  introduction.  It  will  be  remembered 
that  the  Statute  of  Uses  did  not  apply  to  leaseholds,  and  that 
therefore  the  only  conditional  limitations  of  chattels  real  in 
England  were  executory  devises. 

§  149.  In  Anon.6  (1536)  a  term  was  devised  to  A.  and  the 
heirs  of  her  body,  the  remainder,  if  she  died  without  issue 
within  the  term,  to  B.  The  Court  of  Common  Pleas  held 
that  a  term  could  not  be  "limited  in  remainder."  The  limita- 
tion would  now  undoubtedly  be  held  bad,  because  after  an 

1  See  Chilcott  v.  Hart,  23  Color.  F,    §§  807  et  seq.,   post.     But  cf. 

40,  54.  §  856,  post. 

1  Whatever  may  have  been  the  3  37  Hen.  VI.  30.     See   §§  80, 

case  as  to  chattels  personal,  future  ante,  826,  post. 

limitations  of  chattels  real  were  re-  *  Plowd.  539,  542,  543. 

garded  as  executory  and  not  in  the  *  Dyer,  7  o. 
nature  of  remainders.     See  App. 


ORIGIN  AND  HISTORY.  129 

indefinite  failure  of  issue;  but  the  objection  made  at  the  time 
was  apparently  to  an  executory  devise  of  a  term  under  any 
circumstances.  In  Anon.1  (1543)  a  slight  advance  seems  to 
have  been  made  on  this.  It  was  there  said  that  if  a  term  was 
devised  to  one  for  life,  the  remainder  over,  the  remainder  over 
is  good;  but  if  the  devisee  for  life  aliens,  the  remainder-man 
is  without  remedy.2 

§  150.  In  Cecil's  Case 3  (1566)  an  executory  limitation  of  a 
term  by  deed  was  held  bad,  as  it  would  be  in  England  at 
the  present  day;4  but  in  Anon.6  (1568),  Weston,  Walsh,  and 
Harper,  JJ.,  are  reported  to  have  said:  "The  remainder  of  a 
term  devised  to  one  for  term  of  life  is  good  by  devise,  but  not 
by  estate  executed  in  the  lifetime."  The  reporter,  however, 
who  was  then  Chief  Justice  of  the  Court,  adds,  "Yet  quaere 
the  first." 

§151.  Ten  years  afterwards,  in  Welcden  v.  Elkington6 
(1578),  it  was  distinctly  held  that  an  executory  devise  of  a 
term  on  the  death  of  the  first  taker  was  good  and  could  not 
be  destroyed  by  any  act  of  the  first  taker;  and  in  the  thirty 
years  following,  the  same  or  a  similar  point  was  frequently 
decided  in  the  same  way.7  The  current  of  opinion,  however, 
was  not  unbroken.  In  Anon.9  (1587)  there  are  dicta  by  Ander- 
son, C.  J.,  and  Rhodes,  J.,  that  an  executory  devise  of  a  term 
after  a  life  interest  therein  is  void,  and  such  a  devise  was 

1  Bro.  Ab.  Chat.  140,  pi.  23.  7  Paramour  v.  Yardley,  Plowd. 

2  So  Anon.,  Dyer,  746,  pi.  18  539  (1579).    Amner  v.  Luddington, 
(1552).     And  see  North  v.  Butts,  2  Leon.  92;  3  Leon.  89;  Godb.  26; 
Dyer,  139  b  (1556).  1  And.  60  (1584).     Vincent  Lee's 

3  Dyer,  253  b.  Case,  3  Leon.  110;  sub  nom.  Lee  v. 

4  And   see   Green   v.   Edwards,  Lee,  Moore,  268  (1584).    Hanning- 
Cro.  El.  216;  1  Leon.  218;  1  And.  ton  v.  Ryder,  1  Leon.  92;  sub  nom. 
258;   Moore,   297;    §§  807  et  seq.,  Haverington's  Case,  Owen,  6;  sub 
•post.  nom.     Hannington     v.     Richards, 

6  Dyer,  277  b.  Golds.  59,  65;  sub  nom.  Rudiard  v. 

8  Plowd.  516;  Dyer,  358  b;  and  Hannington,   1  And.   162;   Moore, 

see  Curson  v.  Karvile  (1562)  and  249,   pi.   393   (1587).     Handall  t;. 

Wallis  v.  Arden  (1571)  both  cited  Brown,  Moore,  748  (1603).     Cole 

in  Cole    v.    Moore,    Moore,    806,  v.  Moore,  Moore,  806  (1607). 
807.  •  3  Leon.  195;  4  Leon.  192. 


130 


THE   RULE   AGAINST   PERPETUITIES. 


held  bad  by  the  Court  of  Common  Pleas  in  Rayman  v.  Gold  r 
(1592).  In  Woodcock  v.  Woodcock 2  (1600)  the  judges  of  the 
Court  of  Common  Pleas  expressed  opinions  that  such  a  devise 
was  void.  Walmsley,  J.,  said:  "There  are  divers  judgments 
against  my  opinion,  but  upon  what  reasons  I  understand  not." 
In  Mattel  v.  Sackford3  (1607)  the  Court  of  Queen's  Bench 
was  divided  on  the  question.  Coke,  C.  J.,  and  Walmsley,  J.> 
thought  such  executory  devise  not  to  be  good.  Warburton 
and  Daniel,  JJ.,  thought  that  it  was  good.4 

§  152.  But  in  Manning's  Case 5  (1609)  and  Lampet's  Case  6 
(1612)  it  was  solemnly  adjudged  that  after  a  devise  of  a  term 
for  life,  an  executory  devise  over  was  good,  and  not  destruct- 
ible by  the  first  taker;  and  although  these  decisions  have 
been  grumbled  at 7  they  have  never  been  overruled.8  Lampet's- 
Case  9  is  the  first  case  in  which  "perpetuity"  is  mentioned  in 
connection  with  an  executory  devise.  Lord  Coke,  C.  J.,  in 
arguing  against  the  proposition  that  an  executory  devisee. 


1  Moore,  635. 

2  Cro.  El.  795. 

»  Cro.  Jac.  198;  1  Roll.  Ab.  610, 
pi.  4,  5.  See  §  82,  ante. 

*  See  Rector  of  Chedington's 
Case,  1  Co.  153  a;  sub  nom.  Lloyd 
v .  Wilkinson,  Moore,  478. 

8  8  Co.  94  6. 

8  10  Co.  46  b;  sub  nom.  Lampitt 
v.  Starkey,  2  Brownl.  172. 

7  E.  g.  by  all  the  judges  of  the 
Common  Pleas  and  barons  of  the 
Exchequer  (except  Tanfield,  C.  B.). 
They  said,  "that  the  first  grant  or 
devise  of  a  term  made  to  one  for 
life,  remainder  to  another,  hath 
been  much  controverted,  whether 
such  a  remainder  might  be  good, 
and  whether  all  may  not  be  de- 
stroyed by  the  alienation  of  the 
first  party;  and  if  it  were  now 
first  disputed,  it  would  be  hard  to 
maintain;  but  being  so  often  ad- 
judged, they  would  not  now  dispute 


it."  Child  v.  Baylie,  Cro.  Jac. 
459,  461  (cf.  W.  Jones,  15).  Per 
Hide,  Twisden,  and  Browne,  JJ.> 
"Though  we  do  not  hold  it  fit  to 
call  in  question  the  judgment  in 
Matthew  Manning's  Case,  yet 
do  not  think  it  safe  to  stretch  the 
law  against  the  ordinary  rules  of 
law  further  than  in  that  case  it  is 
done."  Pearse  v.  Reeve,  Pollexf. 
29,  30. 

8  2  Harg.  Jurid.  Arg.  41  et  seq^ 
Lewis,  Perp.  83-89.  See  §§818 
et  seq.,  post.  Even  after  Manning's 
Case  it  was  held  in  Price  v.  Atmore, 
1  Bulst.  191;  4  Leon.  246;  sub  nom. 
Price  v.  Almory,  Moore,  831,  that 
if  the  executory  devisee  of  a  term 
died  during  the  life  of  the  first 
taker,  his  executor  would  not  take 
his  interest.  But  see  Welcden  t>. 
Elkington,  Plowd.  516,  525,  in. 
marg.,  and  cases  cited. 

8  10  Co.  46  6,  52  a. 


ORIGIN  AND   HISTORY.  131 

cannot  release  his  interest  to  the  first  taker  of  the  term,  says 
that  "it  would  be  inconvenient  that  such  manner  of  perpetu- 
ity should  be  made  of  a  chattel,  when  of  an  inheritance  neither 
by  act  executed  by  the  common  law,  nor  by  limitation  of 
an  use,  nor  by  devises  in  last  wills,  any  perpetuity  can  be 
established." 

6.  First  Suggestions  at  the  Bar  of  the  Rule  against 
Perpetuities. 

§  153.  In  Anon.1  (1536)  a  limitation  of  a  term  after  an 
indefinite  failure  of  issue  had  been  held  bad;  but  the  objec- 
tion apparently  was  not  .-to  the  remoteness  of  the  executory 
devise,  but  to  any  executory  devise  of  a  term  whatever.2  And 
hi  Forster  v.  Brown 3  (1604),  on  a  devise  of  a  term  to  A.  and 
the  heirs  of  his  body,  but  if  A.  died  without  issue,  then  to 
B.,  it  seems  to  have  been  held,  although  the  case  is  obscurely 
reported,  that  the  gift  over  was  bad.  But  in  Tatton  v.  Mol- 
lineux  *  (1610),  which  was  decided  by  Lord  Ellesmere,  C., 
assisted  by  Warburton  and  Croke,  JJ.,  it  was  said:  "If  the 
remainder  of  such  a  term  be  limited  over,  the  particular  donee 
in  tail  or  for  life  cannot  sell  it  to  the  prejudice  of  the  remainder; 
but  such  a  remainder  will  be  preserved  by  the  common  law, 
as  has  been  adjudged  in  the  Court  of  Common  Pleas,5  and 
also  in  Chancery,  as  divers  decrees  are  there  made."  And  so  in 
Retherick  v.  Chappel 6  (1612)  it  was  held,  on  the  authority  of 
Manning's  Case,  that,  on  a  devise  of  a  term  to  A.  so  long  as 
he  should  have  issue,  and  if  he  died  without  issue,  then  to  B., 
the  remainder  to  B.  was  good.7 

§  154.   Thus  far  there  had  been  no  distinction  taken  be- 

1  Dyer,  7  a.  7  But   see    Bennet  v.  Lewknor, 

2  See  §  149,  ante.  1  Roll.  R.  356,  where  it  is  said  that 
1  Moore,  758.                                     this  point  was  not  argued  in  Reth- 

4  Moore,  809;  Pollexf.  24.  erick  v.  Chappel;  and  cf.  Child  v. 

5  Probably     Manning's      Case,  Baylie,   Cro.   Jac.   459,   461,   462; 
§  152,  ante,  which  had  been  decided  Palm.   333,   335,   336;  and  Wallia 
the  previous  year,  is  meant.  v.  Arden   (1571)   cited  in  Cole  v. 

•  2  Bulst.  28.  Moore,  Moore,  806,  807,  808. 


132  THE   RULE   AGAINST   PERPETUITIES. 

tween  an  executory  devise  of  a  term  after  a  life  interest  and 
after  an  indefinite  failure  of  issue.  Both  limitations  were  at 
first  thought  alike  bad;  and  now  Manning' s  Case  was  sup- 
posed to  make  them  alike  good.  In  Bennet  v.  Lewknor *• 
(1616)  the  distinction  between  them  was  first  clearly  insisted 
on.  Here  there  was  a  devise  of  a  term  to  A.  and  his  heirs 
male,  with  an  executory  devise  over  on  failure  of  such  heirs 
to  a  person  living  at  the  testator's  death.  The  only  report 
of  the  case  contains  nothing  but  the  arguments  of  counsel  in 
the  Exchequer  and  a  statement  that  the  case  was  adjourned.2 
Serjeant  Finch,  who  argued  against  the  executory  devise,  gave 
three  reasons  for  its  invalidity.  1.  That  by  intendment  the 
estate  of  A.  was  to  continue  forever.  2.  "If  it  is  a  good 
remainder,  then  there  will  be  a  possibility  on  a  possibility." 
3.  "If  it  is  a  good  remainder,  then  there  will  be  a  perpetuity 
of  a  chattel  where  there  cannot  be  of  a  freehold,  and  there 
will  be  no  means  to  dock  it."  Here  we  first  meet  the  idea  of 
remoteness  as  an  objection  to  a  limitation  struggling  to  find 
expression. 

§  155.  Child  v.  Baylie.3  This  case,  which  came  before  the 
King's  Bench  hi  1618,  was  as  follows:  A  devise  of  a  term  to 
A.  and  his  assigns,  provided,  that  if  A.  died  without  issue 
living  at  his  death,  then  the  term  should  go  to  B.4  A.  as- 

1  1  Roll.  R.  356.  the  case  in  the  Exchequer  Chamber, 

1  In  the  reports  of  Child  v.  Palm.  333,  the  proviso  is  said  to  be 

Baylie,  Cro.  Jac.  459,  460;  Palm.  that  if  A.  dies  within  the  term, 

48,  50,  333,  334;  W.  Jones  ,15,  it  is  without  issue  then  living,  which  is 

said  that  the  Court  held  the  execu-  substantially  the  same.  In  W. 

tory  devise  void;  but  in  the  report  Jones  it  is  given  thus:  "If  A.  dies 

of  that  case  in  2  Roll.  R.  129,  130,  without  issue  during  the  life  of  B." 

it  is  said  that  this  was  only  the  re-  In  2  Roll,  alone  is  it  given  simply, 

mark  obiter  of  one  of  the  barons.  "If  A.  dies  without  issue  during  the 

1  Cro.  Jac.  459;  Palm.  48,  333;  term."  The  words  "living  at  the 
W.  Jones,  15;  2  Roll.  129.  See  death"  must  have  been  in  the  de- 
Duke  of  Norfolk's  Case,  3  Ch.  vise,  for  the  argument  in  the  Ex- 
Cas.  1,  34.  chequer  Chamber  turns  largely 

4  This  is  the  correct  form  of  the  upon  them.  And  in  the  Duke  of 

devise.  It  is  so  given  in  Croke,  Norfolk's  Case,  3  Ch.  Cas.  1,  34, 

and  in  Palm.  48.  In  the  report  of  Lord  Chancellor  Nottingham  caused 


ORIGIN  AND  HISTORY.  133 

signed  the  term  and  died  without  leaving  issue  at  his  death; 
and  B.  brought  ejectment  against  the  assignee.  This  case 
raised  clearly  the  question  whether  the  reason  why  a  gift  of 
a  term  after  a  general  failure  of  issue  was  bad  was  to  be  found 
in  its  remoteness.  If  remoteness  was  the  reason,  then  the  gift 
here  to  B.  was  good,  because  it  must  take  effect  on  the  death 
of  A.,  and  that  was  not  more  remote  than  the  gift  which  had 
been  held  good  in  Manning's  Case.  In  the  Court  of  King's 
Bench  no  attention  was  paid  by  counsel  or  court  to  the  fact 
that  the  gift  over  was  hi  case  A.  died  without  issue  living  at 
his  death,  it  was  treated  as  if  the  gift  had  been  on  failure  of 
issue  generally; l  and  the  gift  to  B.  was  held  bad  because  the 
gift  was  to  A.  and  his  assigns;  because  a  term  cannot  be  en- 
tailed; because  it  was  the  gift  of  a  possibility  on  a  possibility; 2 
and  because  if  the  gift  to  B.  was  good  it  could  not  be  barred 
by  A.,  and  thus  future  interests  in  chattels  would  be  less 
destructible  than  they  were  hi  freeholds,  "and  if  the  law 
will  not  suffer  such  perpetuities  of  inheritances,  then  much 
less  will  it  suffer  perpetuities  of  chattels."  3 

§  156.  The  evils  arising  from  the  Statute  De  Donis  creat- 
ing inalienable  estates  tail  were  familiar  to  the  courts,  and 
after  their  predecessors  had,  by  the  doctrine  of  Taltarum's 
Case,  broken  down  the  "perpetuities"  of  estates  tail,4  the 
only  perpetuities  which  they  had  had  occasion  to  consider, 
they  were  resolved  not  to  have  them  surreptitiously  intro- 
duced by  entailing  long  terms,  to  which  the  device  of  com- 
mon recoveries  could  not  be  applied.  Having  been  warned 
by  the  history  of  estates  tail,  they  timely  took  the  matter  hi 
hand,  and  in  Bennet  v.  Lewknor*  as  devises  after  failure  of 
issue  could  not  be  docked,  they  held  such  devises  void  ab 

the  record   to  be   examined,    and  shows  that  by  "remote"  is  meant 

found    that    Croke's    report    was  "improbable,"     not     "distant    in 

correct.  point  of  time." 

1  2  Roll.  129;   Palm.  48;   Cro.  »  2  Roll.  129,  ad  fin. 

Jac.  459.  «  See  §  141,  ante. 

1  This  is  sometimes  called  a  "re-  e  §  154,  ante. 
mote  possibility;"  but  the  context 


134  THE   RULE  AGAINST  PERPETUITIES. 

initio.  If  there  was  present  to  the  mind  of  the  Court  of  King's 
Bench  hi  Bennet  v.  Lewknor  and  Child  v.  Baylie  any  idea  that  a 
limitation  might  be  objectionable  because  it  was  to  begin  at 
too  distant  a  day,  such  idea  was  still  extremely  vague. 

§  157.  The  case  of  Child  v.  Baylie  was  carried  to  the  Ex- 
chequer Chamber  hi  1623.1  There  the  attention  of  the  Court 
was  called  by  counsel  to  the  fact  that  the  limitation  over  to 
B.  was  not  on  the  death  of  A.  without  issue  generally,  but 
on  the  death  of  A.  without  issue  living  at  his  death.  But 
the  judges2  held  "for  the  case  hi  question,  where  there  was  a 
devise  to  one  and  his  assigns,  and  if  he  died  without  issue 
then  living,  that  it  would  remain  to  another,  it  is  a  void  de- 
vise; and  it  is  all  one  as  the  devise  of  a  term  to  one  and  his 
heirs  of  his  body,  and  if  he  die  without  issue,  that  then  it 
shall  remain  to  another,  it  is  merely  void;  for  such  an  entail 
of  a  term  is  not  allowable  hi  law,  for  the  mischief  which  other- 
wise would  ensue,  if  there  should  be  such  a  perpetuity  of  a 
term."3  It  is  clear  that  "perpetuity"  is  not  used  here  in  the 
sense  of  remoteness,  for  obviously  there  is  a  great  difference 
between  the  two  devises  in  the  matter  of  remoteness.4  Of 
Retherick  v.  Chappel5  the  Court  say,  "And  though  there  be  such 
a  judgment  given  hi  the  King's  Bench  as  allows  the  remainder 
to  be  good,  yet  time  has  discovered  the  inconvenience  that 
such  limitations  have  introduced  in  the  republic."  6 

1  Cro.  Jac.  459,  460;  Palm.  333;  the  gift  over  to  such  other  is  bad; 

W.  Jones,  15.  and  they  admit  this.     They  say, 

1  Tanfield,     C.     B.,    dissented;  "The  first  grant  or  devise  of  a  term 

Palm.   334,    adds,    "totis  viribus."  made  to  one  for  life,  remainder  to 

W.  Jones,   15,  says  Denham,   B.,  another,  hath  been  much  contro- 

also  dissented;  but  the  other  re-  verted,  whether  such  a  remainder 

porters   do   not   agree   with    this.  might   be   good,   and   whether   all 

Palm.  335.    Cro.  Jac.  461.  may  not  be  destroyed  by  the  aliena- 

1  Cro.  Jac.  461.  tion  of  the  first  party;  and  if  it  were 

4  It  might  be  fairly  urged  that  now  first  disputed,  it  would  be  hard 

the    ground    taken   by  the  Court  to  maintain;    but  being   so  often 

would  require  them  to  hold  that  if  adjudged,  they  would  not  now  dis- 

a  term  is  given  for  life  to  one,  and  pute  it."     Cro.  Jac.  461. 
on  his  death  to  another,  as  in  Man-  '  2  Bulst.  28;  §  153,  ante. 

ning's  Case,  8  Co.  94  b,   §  152,  ante,  •  Palm.  335,  336. 


OBIGIN  AND  HISTORY.  135 

§  158.  The  case  of  Child  v.  Baylie  is  important  as  showing 
that  none  of  the  twelve  judges  of  England,  except  Chief  Baron 
Tanfield,1  were  then  disposed  to  recognize  the  question  of  re- 
moteness as  having  anything  to  do  with  the  validity  of  a  limita- 
tion. But  it  is  also  important  because  Davenport  (afterward 
Chief  Baron  of  the  Exchequer),  hi  his  argument  before  the 
Court  of  Exchequer  Chamber  for  the  validity  of  the  gift  over, 
was  the  first  person  to  enunciate  clearly  the  principle  on  which 
the  Rule  against  Perpetuities  rests.  He  said:  "There  is  no 
danger  of  perpetuity  by  such  a  conveyance.  For  he  took  a 
diversity  when  the  contingency  is  such  as  can  or  ought  [doet]  to 
happen  in  the  life  of  the  devisee.2  There  a  remainder  limited 
on  such  an  estate  in  case  of  a  devise  of  a  chattel  is  good,  as  in 
our  case,  if  he  should  die  without  issue  of  his  body  living  at  the 
time  of  his  death,  so  that  it  does  not  exceed  his  life.  But  if  the 
contingency  be  such  as  is  foreign,  [forrein]  or  is  to  commence 
in  futuro  after  the  death  of  the  first  devisee,  there,  because 
such  limitation  tends  to  make  a  perpetuity,  a  remainder  limited 
on  it  is  bad,  as,  if  he  should  die  without  issue  or  without  heir, 
that  then  it  shall  remain  over.  And  on  this  diversity  they 
strongly  [fortment]  rely."  3 

7.  Slow  Judicial  Recognition  of  Remoteness  as  the  Essential 
Point  in  judging  Future  Limitations. 

§  159.  After  the  decision  of  Child  v.  Baylie  hi  the  King's 
Bench,  but  before  the  argument  in  the  Exchequer  Chamber, 
came  hi  1620  the  case  of  Pells  v.  Brown  in  the  King's  Bench.4 
A  testator  seised  hi  fee  devised  the  land  to  A.  and  his  heirs, 
and  if  A.  died  without  issue  living  B.,  then  to  B.  and  his  heirs. 

1  Except   also,    possibly,  Baron  Palmer,  now  in  the  Library  of  the 

Denham,  see  note  to  the  preceding  Law  School  of  Harvard  University, 

section.  l  Palm.  334.     On   this  case,  see 

1  It   is   printed  "devisor,"  but  also  App.  K,  §  940,  post. 

clearly  "devisee"  is  meant.     It  is  4  Cro.  Jac.  590;  2  Roll.  R.  196, 

corrected  by  an  old  hand  into  "de-  216;  Godb.  282;  sub  nom.  Pills    v. 

visee"  in  Judge   Story's    copy  of  Brown,  Palm.  131;  sub  nom.  Petts 

v.  Browne,  J.  Bridg.  1. 


136  THE  RULE  AGAINST  PERPETUITIES. 

A.  suffered  a  recovery  and  died  without  issue,  living  B.  It 
was  held  by  Montagu,  C.  J.,  Chamberlayne  and  Hough- 
ton,  JJ.,  that  B.  was  not  barred.  Doderidge,  J.,  dissented 
on  the  ground  that  if  the  executory  devise  to  B.  was  not  de- 
stroyed by  the  recovery,  "it  would  be  a  mischievous  kind  of 
perpetuity  which  could  not  by  any  means  be  destroyed."  l 
His  brethren  replied:  "There  is  no  such  mischief  that  it  should 
maintain  perpetuities,  for  it  is  but  in  a  particular  case,  and 
upon  a  mere  contingency,  which  peradventure  never  may 
happen,  and  may  be  avoided  by  joining  him  in  the  recovery 
who  hath  such  a  contingency."  2  The  devise  to  B.  was  in 
fact  not  too  remote  within  the  Rule  against  Perpetuities  as  now 
established,  but  no  question  of  remoteness  was  mooted  hi  the 
case.  It  was  assumed  that  the  gift  to  B.  was  good;  the  question 
discussed  was  whether  it  was  destructible.  The  remark  of  the 
Court  that  the  objection  of  perpetuity  might  be  avoided  by 
joining  B.  hi  the  recovery  shows  that  "perpetuity"  was  not 
used  as  meaning  a  remote  interest,  but  as  meaning  an  inalien- 
able interest.  Although  no  question  of  remoteness  was  pre- 
sented in  Pells  v.  Brown,  it  is  hard  to  overestimate  its  influence 
on  the  subsequent  history  of  conveyancing.  Had  it  been  held 
that  conditional  limitations  could  be  destroyed  like  contingent 
remainders,  the  need  of  a  rule  against  remoteness  might 
never  have  been  felt;  even  if  some  such  rule  had  finally  been 
evolved,  it  would  probably  have  been  in  other  than  its  present 
form.  But  when  conditional  limitations  were  declared  inde- 
structible, the  need  of  distinguishing  between  those  which 
could  be  allowed  and  those  which  must  be  condemned  as  too 
remote  was  sure,  sooner  or  later,  to  present  itself  to  the  courts.* 

1  Cro.  Jac.  592.  Magna  Charta,  of  this  branch  of 

1  Cro.  Jac.  593.  the  law,"  refers  not,  however,  to  its 

*  See  2  Harg.  Jurid.  Arg.  32  et  deciding  that  an  executory  devise 

*eq.     Lewis,  Perp.  128-134.     Lord  is  indestructible,  but  to  its  decid- 

Kenyon's  "nervous  expression"  in  ing  that  the  failure  of  issue  in- 

Portcr  v.  Bradley,  3  T.  R.  143,  that  tended  was  definite  and  not  indefi- 

the  case  of  Pells  v.  Brown  "is  the  nite.    See  Marsden,  Perp.  198. 

foundation,    and    as    it    were    the  In  the  case  of  Gay  v.  Gay,  or 


ORIGIN   AND   HISTORY. 


137 


§  160.  After,  however,  as  before  the  case  of  Pells  v.  Brown 
it  was  the  consideration  of  chattels  real  to  which  the  Rule  of 
Perpetuities  owed  its  growth.  Down  to  and  including  the 
great  Case  of  the  Duke  of  Norfolk,1  in  the  year  1681,  there 
were,  besides  Gay  v.  Gay,11  mentioned  hi  the  note  to  the  pre- 


Jay  v.  Jay,  Styles,  258,  274  (1651), 
in  the  Upper  Bench,  there  was  a 
devise  of  a  copyhold  to  A.  and  his 
heirs,  but  if  A.  died  during  the  life 
of  his  mother  then  to  B.  and  his 
heirs.  "Rolle,  Chief  Justice,  said, 
it  is  an  inconvenience  to  devise  such 
a  contingent  estate.  Nicholas  [J.] 
doubted,  for  he  said  it  would  shake 
many  wills,  if  it  might  not  be." 
The  judgment  is  not  reported. 
Latch,  of  counsel,  is  said  to  have 
"confessed  that  in  the  case  of  Pell 
and  Brown,  17  Jac.  rot.  44,  the 
contrary  was  adjudged;  but  that 
there  did  appear  such  apparent 
inconvenience  in  it,  that  upon  it 
the  Court  was  afterwards  divided, 
and  21  Jac.,  in  the  Serjeant's  Case,* 
it  was  made  a  flat  quaere,  and  ever 
since  it  hath  been  disputable, 
whether  a  contingent  devise  be 
good  or  not,  and  in  Jacob  and 
Telling's  Case  it  is  not  determined, 
and  Hanbury  and  Cookrell's  Case 
is  not  adjudged,  but  if  it  be,  it 
is  on  my  side;  and  Mich.  37  &  38 
C.  B.  rot.  1149,  it  was  adjudged 
upon  solemn  argument  at  the  Bar, 
and  on  the  Bench,  contrary  to  the 
judgment  in  Pell  and  Brown's  Case, 
if  lands  be  devised  to  one  and  his 
heirs,  and  if  he  die  without  issue, 
that  the  land  shall  be  to  another 
and  his  heirs,  this  is  no  estate  tail; 
for  it  cannot  stand  with  the  rules 


of  law  to  devise  such  an  estate,  for 
it  is  but  a  possibility,  and  if  it 
should  be  more,  it  must  be  a  fee 
upon  a  fee,  and  so  a  perpetuity, 
and  it  cannot  be  known  within 
what  bounds  it  shall  end,  either 
in  case  of  years  or  life  or  other  con- 
tingencies, and  the  comparison  of 
Lamport's  [Lampet's]  Case  is  not 
like  to  this  case,  for  that  was  of  a 
term."  These  statements  attrib- 
uted to  Latch  find  no  support  in 
the  printed  books,  and  both  counsel 
and  reporter  bear  rather  an  evil 
name  for  accuracy.  See  per  Twis- 
den,  J.,  in  Foxwith  v.  Tremain,  1 
Mod.  296;  Palmer,  Preface;  O. 
Bridg.  Pref .  p.  ix ;  Wallace,  Re- 
porters (4th  ed.)  262,  288.  It  is 
clear,  however,  that  the  judges  felt 
anxious  about  the  consequences  of 
the  decision  in  Pells  v.  Brown, 
that  executory  devises  were  inde- 
structible. The  notion  that  an  ex- 
ecutory devise  was  not  barred  by  a 
recovery  "went  down  with  the 
judges  like  chopped  hay."  Per 
Powell,  J.,  Scattergood  v.  Edge,  12 
Mod.  278,  281.  "These  executory 
devises  had  not  been  long  counte- 
nanced when  the  judges  repented 
them;  and  if  it  were  to  be  done 
again,  it  would  never  prevail." 
Per  Treby,  C.  J.,  Id.  287. 

*  3  Ch.  Cas.  1. 

•  Styles,  258,  274. 


*  "  It  is  true,  it  was  made  a  question  afterwards  in  the  Serjeant's  Case;  but  what 
then?  We  all  know  that  to  be  no  rule  to  Judge  by;  for  what  is  used  to  exercise  the  wita 
of  the  serjeanta  is  not  a  governing  opinion  to  decide  the  law."  Per  Lord  Chancellor 
Nottingham,  in  the  Duke  of  Norfolk's  Caae,  3_Ch.  Cas.  1,  31,  32. 


138  THE   RULE   AGAINST  PERPETUITIES. 

ceding  section,  only  two  cases  in  which  the  validity  of  exec- 
utory devises  of  freeholds  came  in  question,  —  Snow  v.  Cutter 
and  Taylor  v.  Biddal.  They  are  discussed  below.1  The  de- 
cisions on  executory  devises  of  terms,  on  the  other  hand,  were 
numerous.  The  principle  announced  by  Davenport  hi  Child. 
v.  Baylie?  that  the  validity  of  an  estate  on  condition  precedent 
depended  not  on  the  character  but  on  the  time  of  the  contin- 
gent event,  although  ultimately  to  prevail,  was,  as  we  have 
seen,  at  first  rejected  by  almost  the  entire  bench,  and  won  its 
way  but  slowly  to  judicial  recognition. 

§  161.  Two  classes  of  executory  devises  of  terms  came 
before  the  courts,  —  those  after  a  life  interest  and  those 
after  a  failure  of  issue.  In  the  latter  class  of  cases,  where 
the  failure  of  issue  was  indefinite,  the  executory  devises  were 
held  bad.3  In  Wood  v.  Sanders 4  (1669)  a  term  was  assigned 
in  trust  for  A.  for  sixty  years  if  he  lived  so  long;  then  to  B. 
for  sixty  years  if  she  lived  so  long;  then  the  trustees  to  assign 
to  C.  in  case  he  survived  A.  and  B.  If  C.  died  in  the  life- 
time of  A.  and  B.,  leaving  issue  who  were  living  at  the  death 
of  A.  and  B.,  then  the  trustees  to  assign  to  the  one  who  should 
then  be  C.'s  eldest  son;  if  C.  died  without  issue  before  such 
assignment,  then  to  D.  and  the  heirs  of  his  body,  and  in  de- 
fault of  such  issue,  then  to  E.  C.  died  before  A.  and  B.  with- 
out issue,  and  E.  was  appointed  his  administrator.  Then 
A.  and  B.  died,  and  D.  entered  and  afterwards  died  without 
issue.  Lord  Keeper  Bridgman,  assisted  by  Twisden,  Rains- 
ford,  and  Wilde,  JJ.,  held  that  as  C.'s  interest  had  never  vested, 
D.'s  administrator  was  entitled  to  the  trusts  of  the  term. 

1  §5  165,  172,  post.  79;  2  Ch.  'Rep.  14  (1670).  Burgea 

1  See  §  158,  ante.  v.  Surges,  1  Ch.  Gas.  229;  1  Mod. 

»  Sanders  v.  Cornish,  Cro.  Car.  115;  Pollexf.  40;  Finch,  91  (1674). 

230(1631).     Backhouse  v.  Belling-  (See  §  166,  post.)    Knight  v.  Knight, 

ham,  Pollexf.  33  (1664).    (See  §  361,  Pollexf.    42;    Finch,     181     (1674). 

post.)    Wood  v.  Sanders,  1  Ch.  Gas.  Warman  v.  Seaman,  Pollexf.   112; 

131;  Pollexf.  35  (1669).     Love  v.  2  Ch.  Cas.  209;  Finch,  279;  Freem. 

Wyndham,  1  Mod.  50;  2  Keb.  637;  Ch.  306  (1675). 

1  Sid.  450;  1  Lev.  290;  1  Ventr.  «  1  Ch.  Cas.  131;  Pollexf.  35. 


ORIGIN  AND  HISTORY.  139 

The  case  is  very  shortly  reported.  Its  decision  is  inconsistent 
with  any  theory  of  a  gift  of  a  possibility  upon  a  possibility 
being  bad.  Here  the  gift  to  D.  was  held  good;  and  yet  it  took 
effect  only  hi  case  C.  died,  only  hi  case  he  died  hi  the  lifetime 
of  A.  and  B.,  and  only  in  case  he  died  in  the  lifetime  of  A.  and 

B.  without  issue.    On  the  other  hand  the  case  falls  short  of 
deciding  that  remoteness  is  the  only  objection  to  the  creation  of 
a  future  interest.     It  was  apparently  still  the  opinion  of  the 
Court  that  if  a  term  was  given  to  A.  and  the  heirs  of  his  body, 
and  A.'s  interest  vested,  no  gift  over  was  good  even  though 
it  was  made  contingent  on  the  extinction  of  A.'s  issue  during 
a  life  in  being.1    And  this  is  confirmed  by  Boucher  v.  Antram.2 
There  a  legacy  was  given  to  A.  "for  her  to  have  the  use  of  it 
during  her  life,  and  her  child  or  children  to  have  it  after  her 
decease,  but  if  she  happens  to  die,  leaving  no  child  surviving 
her,"  then  to  B.    It  was  held  by  Lord  Keeper  Bridgman  that 
the  gift  to  B.,  "it  being  a  personalty,  is  hi  the  nature  of  a  per- 
petuity," and  was  void.3 

§  162.  The  other  class  of  executory  devises  of  terms  which 
came  up  for  consideration  were  gifts  after  life  interests.  In 
accordance  with  Manning's  Case  4  such  gifts  continued  to  be 
held  good.5  In  Cotton  v.  Heath  6  (1638)  a  case  was  referred 
out  of  Chancery  to  Jones,  Croke,  and  Berkeley,  Justices  of 
the  King's  Bench.  A.  devised  a  term  to  his  widow  for  eighteen 
years,  then  to  C.  for  life,  and  then  to  the  eldest  issue  male  of 

C.  for  life.    The  judges  resolved  without  question,7  and  the 
Lord  Keeper  Coventry  agreed,8  that  "although  C.  has  not  any 
issue  male  at  the  time  of  the  devise  and  death  of  the  devisor, 
yet  if  he  has  issue  male  before  his  death,  this  issue  male  shall 

1  See  Howard  v.  Norfolk,  2  Ch.          6  E.  g.  Veizy  v.  Pinwell,  Pollexf. 
Rep.  229,  239;  2  Swanst.  454,  467,      44. 

468.  «  1  Roll.  Ab.  612,  pi.  3;  Pollexf. 

2  2   Ch.   Rep.   65;   Pollexf.   37      26. 

(1671).  7  Pollexf  en  says  that  the  certifi- 

3  See  also  Pearse  v.  Reeve,  Pol-  cate   was   signed  by   two  of   the 
lexf.  29.  judges. 

4  8  Co.  94  6;  §  152,  ante.  *  See  Pollexf.  26. 


140  THE  RULE  AGAINST  PERPETUITIES. 

have  it  as  an  executory  devise,  because  although  it  is  a  contin- 
gency on  a  contingency,  and  the  issue  not  in  esse  at  the  time 
of  the  devise,  yet  inasmuch  as  it  is  limited  to  him  only  for  life, 
it  is  good,  and  all  one  with  Manning's  Case  ;  "  and  further,1 
that  a  feoffment  by  C.  after  the  birth  of  issue  male  did  not 
destroy  the  executory  devise. 

§  163.  Twenty-three  years  later,  however,  in  1661,  Lord 
Chancellor  Clarendon,  assisted  by  Twisden  and  Browne,  JJ., 
held,  in  Apprice  v.  Flower,2  that  after  the  devise  of  a  term 
to  A.,  a  devise  of  it  to  the  unborn  children  of  A.  was  void, 
because  it  "tended  to  raise  and  create  a  perpetuity  contrary 
to  the  rules  of  law."  As  such  limitations  were  the  ordinary 
form  in  which  freehold  land  was  settled  and  devised,  the 
objection  would  seem  to  have  been  the  indestructibility  of 
chattel  interests.  In  accordance  with  Apprice  v.  Flower  it 
was  said  by  Hyde,  Twisden,  and  Browne,  JJ.,  hi  Pearse  v. 
Reeve  3  (1661):  "Though  we  do  not  hold  it  fit  to  call  in  ques- 
tion the  judgment  hi  Matthew  Manning's  Case,  yet  do  not 
think  it  safe  to  stretch  the  law  against  the  ordinary  rules 
of  law,  further  than  in  that  case  it  is  done;  and,  therefore,  if 
the  devisor  by  his  will  doth  limit  the  remainder  of  it  to  his 
children,  or  to  the  issue  of  his  body,  whereby  his  intention 
appears  to  limit  it  hi  a  kind  of  perpetuity  to  his  issue  or  to 
his  children,  we  hold  such  limitation  to  be  void."  And  hi 
Goring  v.  Bickerstaffe 4  (1662),  before  Lord  Chancellor  Claren- 
don, assisted  by  Foster,  C.  J.,  Bridgman,  C.  J.,  and  Hales, 
C.  B.,5  the  Court  "did  all  agree  in  one  uniform  opinion,  that 
the  limitation  of  a  term  to  several  persons  hi  remainder,  one 
after  another,  if  those  persons  were  in  being,  and  particularly 
named,  could  not  tend  to  a  perpetuity;  otherwise,  if  the  per- 
sons were  not  in  being,  and  that  a  man  might  declare  the  trust 
of  a  possibility  in  remainder,  but  that  the  limitation  of  a 

1  See  Pollexf.  26.  8  So  in  Pollexfen;  in  Chancery 

1  Pollexf.  27;  1  Ch.  Rep.  175.  Cases,  Wyndham,  J.,  is  given  in- 

*  Pollexf.  29.  stead  of  Bridgman,  C.  J. 

*  Freem.  Ch.    163;    1  Ch.  Caa. 
4;  Pollexf.  31. 


ORIGIN  AND -HISTORY.  141 

trust  of  such  possibility  to  the  heir  of  the  limiter  was  a  void 
limitation."  * 

§164.  In  Sackvile  v.  Dobson2  (1663),  however,  there  was 
a  limitation  of  the  trust  of  a  term  to  husband  and  wife,  and 
the  longest  liver  of  them,  for  life,  and  after  to  the  eldest  issue 
of  them,  none  being  then  born.  It  was  held  that  though  a 
gift  to  an  unborn  person,  after  two  limitations  to  persons 
living,  was  void,  yet  a  gift  to  an  unborn  person  after  one 
such  limitation  was  good,  and  that  the  limitation  to  husband 
and  wife  was  but  one  limitation,  and  therefore  the  gift  over  in 
this  case  was  good.3 

§  165.  In  the  series  of  cases  on  chattels  real  must  be  in- 
tercalated the  case  of  Snow  v.  Cutler*  (1664).  A.,  having 
the  reversion  of  copyhold  land  after  his  wife's  death,  devised 
it  to  the  heirs  of  his  wife's  body,  if  he  or  they  should  attain 
fourteen  years.  A.  died  without  leaving  issue  by  his  wife. 
She  married  again  and  had  a  son  who  reached  fourteen.  She 
then  died.  The  question  was  whether  the  son  was  entitled. 
The  judges  seem  to  have  been  hi  great  doubt.  Kelyng,  C.  J., 
and  Twisden,  J.,  thought  the  devise  good.  Wyndham  and 
Morton,  JJ.,  contra.  The  objection  of  the  two  latter  seems 
to  have  been  that  the  devise  was  in  form  a  present  devise  to  a 
person  not  in  esse.  Thus  Wyndham  says:  "A  present  devise 
to  an  infant  in  venire  sa  mere  is  void;  contra  if  it  be  said  'when 
he  shall  be  born;'  so  to  J.  S.  when  he  shall  marry  my  daughter, 
this  is  executory  and  good;  so  had  our  devise  been  to  the 
heir,  when  he  shall  be  born,  [it]  had  been  good;  but  this  being 
to  the  heirs  of  the  wife,  it 's  intended  present,  and  so  void."  5 
But  the  judges  are  said  to  have  been  all  agreed  that  an  execu- 
tory devise  "may  well  be  allowed  to  take  place  within  the 
compass  of  a  life,  but  not  after  a  dying  without  issue,  for  that 


1  Freem.  Ch.  166.  *  1  Lev.  135;  1  Keb.  752,  800, 

2  1  Ch.  Gas.  33.  851;  2  Keb.  11,  145,  296;  T.  Raym. 
*  The  case  seems  to  have  been  162;  sub  nom.  Snow  v.  Tucker,  1 

decided  on  a  misunderstanding  of  Sid.  153. 

Goring  v.  Bickerstaffe.  •  1  Keb.  802. 


142  THE   RULE  AGAINST  PERPETUITIES. 

would  make  a  perpetuity."  l  This  is  the  clearest  statement 
given  up  to  this  time  of  the  proposition  that  the  validity  of 
an  executory  devise  depends  upon  the  question  whether  it  must 
happen  within  a  lifetime.2 

-f  §  166.  Returning  now  to  the  cases  of  terms  for  years,  the 
next  is  Surges  v.  Burges3  (1674).  There  a  term  was  settled 
in  trust  for  A.  for  life,  then  for  his  wife  for  life,  then  for  their 
first  and  other  sons  successively  and  the  heirs  of  their  bodies, 
and  then  for  their  daughters.  Lord  Keeper  Finch,  while 
holding  that  the  limitation  to  the  daughters  was  void,4  yet 
"would  allow  one  contingency  to  be  good,  viz.  that  to  the  first 
son,  though  the  first  son  was  not  in  esse  at  the  time  of  his 
decease."  5  In  Oakes  v.  Chalfont 6  (1674)  Lord  Keeper  Finch 
went  a  step  further,  and  held  that  the  limitation  of  a  term 
after  limitations  to  unborn  children  was  good,  if  the  children 
took  life  interests  only,  and  the  limitation  over  was  to  a  person 
in  esse. 

§  167.  In  the  case  of  Goring  v.  Bicker  staff e 7  (1662)  we 
found  the  first  distinct  enunciation  of  the  proposition  that 
the  number  of  executory  limitations  of  a  term  is  immaterial 
if  they  are  all  to  persons  in  being.8  But  in  Love  v.  Wyndham  9 
(1670)  this  was  more  emphatically  expressed.  In  that  case 
there  was  a  devise  of  a  term  to  A.  for  life,  then  to  B.  for  life, 
but  if  B.  should  die  without  issue  to  C.  It  was  held  that  an 
indefinite  failure  of  issue  was  meant,  and  this  being  so,  of 
course  the  devise  to  C.  was  void.  The  case  is  noteworthy  on 

»  1  Lev.  136.  6  1  Mod.  115. 

1  Kelyng,  C.  J.,  is  reported  to  *  Pollexf.  38;  sub  nom.  Chalfont 

have  said,    "Where  the  intent  is  v.  Okes,  1  Ch.  Gas.  239. 

exprest  to  be  in  future,  it  is  an  ex-  1  Freem.  Ch.  163;  1  Ch.  Cas.  4 

ecutory  devise;  and  if  an  ordinary  Pollexf.  31;  see  §  163,  ante. 

contingency  be  thereupon  limited,  8  See    passage    cited   in    §  163, 

which  may  determine  within  one  ante. 

life  or  such  time,  it 's  good."     2  •  1  Mod.  50;  2  Keb.  637;  1  Sid. 

Keb.  300.  450;  1  Lev.  290;  1  Ventr.  79;  2  Ch. 

»  1  Ch.  Cas.  229;  1  Mod.  115;  Rep.  14.    See  §  226,  post;  and  also 

Pollexf.  40;  Finch,  91.  Huntbatch   ».    Lee,    3    Keb.    750 

*  See  §  161,  ante.  (1676),  obscurely  reported. 


ORIGIN   AND   HISTOBY.  143 

account  of  some  remarks  of  Twisden,  J.  They  are  differently 
reported.  In  1  Mod.  54,  thus:  "If  a  tenant  of  a  term  devise  it 
to  B.  for  life,  the  remainder  to  C.  for  life,  the  remainder  to  D. 
for  life;  I  have  heard  it  questioned,  whether  these  remainders 
are  good  or  not?  But  it  hath  been  held,  that  if  all  the  remainder- 
men are  living  at  the  time  of  the  devise,  it  is  good:  if  all  the 
candles  be  light  at  once  it  is  good.  But  if  you  limit  a  remainder 
to  a  person  not  in  being,  as  to  the  first-begotten  son,  etc.  and 
the  like,  there  would  be  no  end  if  such  limitations  were  admitted, 
and  therefore  they  are  void:  and  some  judges  are  of  the  same 
opinion  to  this  hour."  In  1  Sid.  451:  "Note  by  Twisden,  J., 
that  the  law  is  now  settled,  and  if  a  term  be  devised  to  one  for 
life,  remainder  to  another  for  life,  remainder  to  a  third  for  life, 
etc.,  and  so  to  twenty,  one  after  the  other,  that  it  is  a  good  de- 
vise to  them  all,  notwithstanding  the  objection  of  possibilities 
upon  possibilities,  if  all  the  persons  were  in  esse  at  the  time 
of  the  devise,  because  all  the  candles  are  lighted  at  once.  But 
if  the  devise  be  to  one  for  life,  who  is  not  then  in  esse  (as 
to  the  first  son),  there  no  limitation  of  a  term  can  be  after  that. 
And  of  this  opinion  seemed  all  the  court."  l 

§  168.  The  law  up  to  this  time  may  be  summed  up  thus: 
Any  number  of  life  interests  could  be  given  in  succession  to 
persons  in  being.2  Limitations  to  unborn  persons  might  be 
good.3  But  the  remoteness  in  time  of  a  contingency  was  not 
the  sole  test  of  the  validity  of  an  interest  conditioned  on  it. 
The  nature  of  the  contingency  was  also  involved.  Thus  a 
gift  of  chattels  after  an  indefinite  failure  of  issue  was  bad, 
although  confined  to  a  failure  within  the  lifetime  of  persons 
in  being.  This  had  been  held  in  Child  v.  Baylie*  and  had 
never  been  overruled.  It  was  reserved  for  Lord  Nottingham, 
in  the  great  Case  of  the  Duke  of  Norfolk,  against  the  opinion 

1  The  case  of  Taylor  v.  Biddal  *  Goring   v.   Bickerstaffe,    Love 

is  the  next  in  chronological  order,      v.  Wyndham,  §§  163,  167,  ante. 
but  it  will  be  most  conveniently  *  See   Burges   v.  Burges,   §  166, 

considered  later.  See  §  172,  ante,  but  under  what  restrictions 
post.  was  far  from  clear.  §§  162-164. 

«  §§  155-158,  ante. 


144  THE  BULB  AGAINST  PERPETUITIES. 

of  the  heads  of  all  the  law  courts,  to  establish  for  the  first 
time,  but  on  a  foundation  which  has  never  been  shaken, l  the 
doctrine  that  the  validity  of  a  contingent  interest  depends 
upon  its  distance  in  time,  and  not  upon  the  character  of  the 
contingency. 

V 

8.   Rule  against  Perpetuities  established. 

§169.  The  Duke  of  Norfolk's  Case2  was  this:  Land  was 
conveyed  by  the  Earl  of  Arundel  to  trustees  for  a  long  term, 
in  trust  for  B.  his  second  son  and  the  heirs  male  of  his  body, 
but  if  A.,  the  Earl's  eldest  son,  should  die  without  issue  male 
in  the  life  of  B.,  or  if  the  earldom  should  descend  upon  B., 
then  the  trust  to  be  for  C.,  the  third  son.3  A.  died  without 
issue  in  the  life  of  B.,  and  the  question  arose  in  Chancery 
whether  the  executory  devise  to  C.  was  good.  Lord  Chan- 
cellor Nottingham  called  in  the  assistance  of  Pemberton,  C.  J., 
North,  C.  J.,  and  Montagu,  C.  B.  The  judges  were  all  of 
opinion  that  the  executory  devise  to  C.  was  bad  as  tending 
to  a  perpetuity;  but  the  Lord  Chancellor  was  of  an  opposite 
opinion,  and  made  a  decree  in  favor  of  C.  A  bill  of  review 
was  filed,  and  in  1683  Lord  Keeper  North  reversed  the  Chan- 
cellor's decree;  but,  on  appeal  to  the  House  of  Lords,  the 
decree  of  the  Lord  Keeper  was,  in  1685,  reversed,  and  Lord 
Nottingham's  decree  affirmed.4  The  question  in  this  case  was 
whether,  after  a  limitation  of  a  term  to  one  and  the  heirs  of 
his  body,  there  could  be  a  limitation  over.  The  judges  were 
of  opinion  that  there  could  not  be.  The  Chancellor  held  the 
limitation  over  good,  provided  the  contingency  on  which  the 
limitation  over  was  to  take  effect  must  happen  within  a  life 
in  being.  He  said  that  no  one  now  disputed  that  a  contingent 

1  "From  that  time  to  the  prea-      sub  nom.  Howard  v.  Norfolk,  2  Ch. 
ent,  every  judge  has  acquiesced  in      Rep.  229;  2  Swanst.  454. 
that  decision."    Per  Lord  Kenyon,  *  The  conveyance  was  drawn  by 

Long  v.  Blackall,  7  T.  R.  100,  102.       Sir  Orlando  Bridgman.    See  3  Ch. 

»  3  Ch.  Gas.   1;    Pollexf.    223;      Gas.  27. 

«  3  Ch.  Gas.  53. 


ORIGIN   AND   HISTORY.  145 

limitation  of  a  term  to  take  effect  within,  or  at  the  end  of,  the 
life  of  one  to  whom  an  interest  for  life  was  limited  in  the  term 
was  good,  and  it  was  absurd  to  make  any  distinction  because 
the  first  taker  was  declared  to  hold  to  himself  and  the  heirs  of 
his  body,  if  the  limitation  over  was  only  on  a  contingency  which 
could  not  happen  after  his  death;  that  it  was  obvious  that  there 
was  no  more  a  perpetuity  in  the  one  case  than  in  the  other;  and, 
hi  short,  that  if  the  future  estate  must  vest  within  a  lifetime, 
it  was  immaterial  what  was  done  with  the  term  before  it  vested. 
This  case  overruled  Child  v.  Baylie,  and  put  the  law  on  a 
rational  basis.  It  has  not  been  shaken  since.  In  favor  of  the 
plaintiff  the  supposed  doctrine  that  you  could  not  have  a 
possibility  upon  a  possibility  was  invoked,  but  it  met  with 
no  favor  in  any  quarter.  "There  may  be  a  possibility  upon  a 
possibility,  and  a  contingency  upon  a  contingency,  and  in 
truth  every  executory  devise  is  so,  and  therefore  the  con- 
trary rule  given  by  Lord  Popham  in  the  Rector  of  Chedington's 
Case  is  not  reason.  These  things  were  agreed  by  all."  l  Lord 
Nottingham  was  pressed  with  this  case:  "Suppose  a  contin- 
gency which  must  take  effect,  if  at  all,  within  one  hundred 
years,  but  may  not  take  effect  any  sooner.  What  then?  Where 
will  you  stop?"  "Where?"  he  answered;  "why,  everywhere, 
where  there  is  not  any  inconvenience,  any  danger  of  a  per- 
petuity; and  whenever  you  stop  at  the  limitation  of  a  fee  upon 
a  fee,  there  will  we  stop  in  the  limitation  of  a  term  of  years."  2 
"But  what  time?  and  where  are  the  bounds  of  that  contin- 
gency? You  may  limit,  it  seems,  upon  a  contingency  to  hap- 
pen in  a  life.  What  if  it  be  limited,  if  such  a  one  die  without 
issue  within  twenty-one  years  or  a  hundred  years,  or  while 
Westminster  Hall  stands?  Where  will  you  stop,  if  you  do  not 
stop  here?  I  will  tell  you  where  I  will  stop:  I  will  stop  wherever 
any  visible  inconvenience  doth  appear;  for  the  just  bounds 
of  a  fee  simple  upon  a  fee  simple  are  not  yet  determined, 

1  2  Ch.  Rep.  237.    See  to  the      on  the  nature  of  a  perpetuity,  3 
same  effect,  3  Ch.  Gas.  29,  30;  and      Ch.  Cas.  31. 

*  3  Ch.  Cas.  36. 


146  THE   BULB  AGAINST  PERPETUITIES. 

but  the  first  inconvenience  that  ariseth  upon  it  will  regulate 
it." » 

§  170.  The  Duke  of  Norfolk's  Case  marks  the  close  of  the 
first  stage  in  the  history  of  the  Rule  against  Perpetuities.  It 
was  now  a  settled  point  that  a  future  interest  might  be  limited 
to  commence  on  any  contingency  which  must  occur  within 
lives  in  being.  Whether  this  period  could  be  extended  re- 
mained to  be  determined.  Before  considering  the  series  of 
decisions  on  this  point,  one  matter  must  be  noticed.  Not- 
withstanding the  first  decision  in  the  Duke  of  Norfolk's  Case, 
it  is  said  in  Massenburgh  v.  Ash  2  (1684)  that  "it  was  agreed 
by  the  counsel  and  so  declared  by  the  Court,"  "that  the  gen- 
eral rule  that  has  hitherto  obtained  was,  that  you  might 
limit  a  term  to  as  many  persons  as  you  would,  one  after  another, 
that  were  in  esse  at  the  time  of  the  limitation;  and  one  step 
further,  to  a  person  not  in  esse;  but  that  there  could  be  but 
one  contingent  remainder  of  a  term  for  years."  This  seems 
to  be  the  last  case  in  which  the  number  of  contingent  interests 
is  suggested  to  be  of  importance;  and  in  Gulliver  v.  Wickett 3 
(1745)  (a  case,  it  is  true,  of  freeholds,  not  leaseholds)  we  find 
Lee,  C.  J.,  saying,  "The  number  of  contingencies  are  not 
material,  if  they  are  all  to  happen  within  a  life  in  being,  or 
a  reasonable  time  afterwards." 

9.    Extension  of  the  Rule  so  as  to  cover  the  Minority  of  a 
Grantee  or  Devisee. 

§  171.  The  first  extension  of  the  period  within  which  future  in- 
terests might  be  created  was  to  make  it  cover  the  time  necessary 
for  the  birth  of  posthumous  children,  and  also  the  minority 
of  an  executory  devisee  unborn  at  the  death  of  the  testator. 
In  Snow  v.  Cutler 4  there  had  been  a  devise  to  the  heirs  of 
the  body  of  the  testator's  wife,  if  he  or  they  should  attain  four- 

1  3  Ch.  Gas.  49.  851;  2  Keb.  11,  145,  296;  T.  Raym. 

»  1  Vern.  234.  162;  sub  nom.  Snow  v.  Tucker,  1 

»  1  Wils.  105.  Sid.  153;  §  165,  ante. 

*  1  Lev.  135;  1  Keb.  752,  800, 


ORIGIN   AND   HISTORY.  147 

teen  years.  The  Court  was  divided  on  the  question  whether 
the  devise  was  good.  It  seems,  however,  that  the  objec- 
tion of  those  who  thought  it  invalid  was  to  the  form  rather 
than  to  the  substance,  and  that  if  the  devise  had  been  "to 
the  heir  when  he  shall  be  born,"  they  would  have  deemed 
it  good. 

§  172.  In  Taylor  v.  Biddal l  it  appeared  by  special  verdict 
in  ejectment  that  A.  devised  land  to  his  sister  B.,  the  wife 
of  C.,  until  D.,  the  son  of  B.  and  C.,  should  reach  twenty- 
one,  and  then  to  D.  and  his  heirs,  but  if  he  should  die  under 
twenty-one,  then  to  the  heirs  of  the  body  of  C.  and  to  their 
heirs  "as  they  should  attain  their  respective  ages  of  twenty- 
one  years."  2  D.  died  under  ^wenty-one,  then  B.  died,  leaving 
a  daughter,  E.,  the  defendant,  the  sole  surviving  issue  of  her- 
self and  C.  Then  C.  died,  leaving  E.  of  full  age.3  E.  claimed, 
therefore,  either  as  heir  of  the  body  of  C.,  or  if  the  devise  to 
such  heir  was  void,  then  as  heir  of  her  brother  D.  The  plain- 
tiff's lessor  was  the  heir  of  A.  The  case  was  argued  in  the  Com- 
mon Bench  in  1678.4  The  reports  agree  that  the  Court  held 
that  D.'s  estate  was  vested,  and  E.  entitled  as  his  heir,  even  if 
the  executory  devise  over  to  her  was  void.5  As  to  the  execu- 
tory devise,  Freeman 6  says  the  Court  was  of  opinion  it  was 
bad;  but  the  report  in  2  Modern  7  makes  Chief  Justice  North 
declare  it  good.  As  Mr.  Hargrave  8  remarks,  it  is  hard  to  rec- 
oncile the  language  attributed  to  the  Chief  Justice  in  2  Modern 

1  2    Mod.  289;    Freem.  K.  B.  182   (1667),   but  no  judgment  is 
243.  given.      In    Freeman,    the   second 

2  These  last  words  are  omitted  ejectment   is   reported    as   having 
in  Freeman's  Report,  but  in  Carter's  been  argued  at  Hilary  Term,  1677. 
Report  (vide  infra)  the  words  are:  The  year  then  began  in   March. 
"As   they   or   any   of   them   shall  According  to  our  present  reckoning 
accomplish  the  age  of  twenty-one  the  case  was  argued,  as  stated,  in 
years."  1678. 

*  See  2  Mod.  293.  *  Freem.    K.   B.  244;    2   Mod. 

4  Another  ejectment  had  been  292,  ad  fin. 
brought  before  the  death  of  C.  The  •  P.  244. 

arguments  are  reported  under  the  7  P.  293. 

name  of  Taylor  v.  Wharton,  Carter,  8  2  Harg.  Jurid.  Arg.  36. 


148  THE   RULE  AGAINST  PERPETUITIES. 

with  his  opinion  in  the  Duke  of  Norfolk's  Case; l  but,  notwith- 
standing, it  appears  to  be  the  fact  not  only  that  the  Court 
thought  the  executory  devise  good,  but  that  they  gave  judg- 
ment for  the  defendant  on  that  ground.  For  Lord  Hardwicke 
and  the  other  judges  of  the  King's  Bench,  in  certifying  to  the 
Court  of  Chancery  in  1736  that  a  devise  to  grandchildren  when 
they  reach  twenty-one  was  good,2  said:  "We  do  not  find  any 
case  wherein  an  executory  devise  of  a  freehold  hath  been  held 
good,  which  hath  suspended  the  vesting  of  the  estate  until  a 
son  unborn  should  attain  his  age  of  twenty-one  years,  except 
the  case  of  Taylor  v.  Bydall,  adjudged  upon  a  special  verdict 
in  the  Court  of  Common  Pleas,  Hil.  29  &  30  Car.  2,  and  reported 
in  2  Mod.  289.  That  resolution  appeared  in  every  view  of  it 
to  be  so  considerable  in  the  present  case,  that  we  caused  the 
record  to  be  searched,  and  find  it  to  agree  in  the  material  parts 
thereof  with  the  printed  report;  and  therefore,  however  un- 
willing we  may  be  to  extend  executory  devises  beyond  the  rules 
generally  laid  down  by  our  predecessors,  yet  upon  the  authority 
of  that  judgment,  and  its  conformity  to  several  late  determi- 
nations in  cases  of  terms  for  years,  and  considering  that  the 
power  of  alienation  will  not  be  restrained  longer  than  the 
law  would  restrain  it,  viz.  during  the  infancy  of  the  first  taker, 
which  cannot  reasonably  be  said  to  extend  to  a  perpetuity;  and 
that  this  construction  will  make  the  testator's  whole  disposition 
take  effect,  which  otherwise  would  be  defeated;  we  are  of  opinion 
that  the  devise  before  mentioned  may  be  good  by  way  of  exec- 
utory devise."  And  in  Lovell  v.  Lovell,3  where  a  question  arose 
whether  on  a  gift  to  A.  till  B.  reaches  twenty-one,  and  then  to 
B.,  B.  takes  a  vested  interest,  and  Taylor  v.  Biddal  was  cited, 
Lord  Hardwicke,  C.,  said:  "Taylor  versus  Biddal  is  upon 
an  executory  devise;  for  I  had  a  very  particular  reason  to 
look  into  this  case  in  Stephens  versus  Stephens,  and  therefore 
sent  for  the  record  out  of  the  treasury;  not  truly  stated  in 

>  5  169,  ante.  »  3  Atk.  11,  12. 

*  Stephens  t;.  Stephens,Cas.  temp. 
Talb.  228,  232;  §  175,  post. 


ORIGIN  AND   HISTORY.  149 

the  report  of  the  case,  for  the  other  point  mentioned  in  the 
book  could  not  arise,  being  determined  only  upon  an  executory 
devise." 

§  173.  In  Luddington  v.  Kime l  (1697)  Powell,  J.,  having 
expressed  an  opinion  that  on  a  devise  to  A.,  and  if  he  should 
have  a  posthumous  son  born,  to  such  son,  the  limitation  to 
the  son  would  be  a  good  executory  devise,  "Treby,  Chief 
Justice,  doubted  much  of  that,  and  was  of  opinion  that  the 
time  allowed  for  executory  devises  to  take  effect  ought  not  to 
be  longer  than  the  life  of  one  person  then  in  esse."  2 

§  174.  Gore  v.  Gore.3  Devise  of  land  to  A.  for  five  hun- 
dred years,  and  after  the  determination  of  the  term  to  the  first 
and  other  sons  of  B.,  the  testator's  son.  B.  was  then  a  bachelor. 
Lord  Macclesfield  sent  the  case  to  the  Court  of  King's  Bench, 
who  in  1722  certified  that  the  executory  devise  to  the  first  son 
of  B.  was  bad,  "because  it  is  not  to  take  place  within  that 
compass  of  time  which  the  law  allows."  The  case  against 
the  devise  was  argued  (1)  by  Mr.  Bootle,  who  impugned  it 
on  the  ground  that  if  B.'s  first  son  was  posthumous,  the  estate 
would  not  vest  until  after  a  life  in  being;  and  (2)  by  Mr.  Peere 
Williams,  who  contended  that  the  devise  might  not  vest 
till  the  end  of  the  term  for  five  hundred  years.  Sir  John 
Strange  says  that  the  judges  thought  the  devise  bad  on  the 
first  ground,  "because  it  might  subsist  forty  weeks  after 
the  death  of"  B.,  "and  they  were  not  for  going  a  day  farther 
than  a  life  in  being."  4  Mr.  Peere  Williams  in  his  report 5 
quotes  the  certificate  of  the  judges  as  if  they  decided  the  case 
for  the  reason  urged  by  him,  "it  was  too  remote  (viz.)  after 
five  hundred  years;  "  but  the  words  "(viz.)  after  five  hundred 
years"  are  no  part  of  the  certificate,  which  he  afterwards6 
gives  verbatim  in  full.  Whatever  the  grounds,  Lord  Mac- 
clesfield was  not  pleased  with  the  certificate,  and  afterwards 

1  1  Ld.  Raym.  203,  207.  Mod.  4;  10  Mod.  501;  W.  Kel.  254; 

1  Such  a  limitation  would  now  be  2  Barnard.  K.  B.  209,  229,  355. 
held  a  good  contingent  remainder.  *  2  Stra.  958. 

See  Reeve  v.  Long,  3  Lev.  408.  *  2  P.  Wms.  63. 

»  2  Stra.  958;  2  P.  Wms.  28;  9  •  P.  64. 


150  THE   RULE   AGAINST  PERPETUITIES. 

Lord  King,  becoming  Chancellor,  sent  it  back  to  the  Court  of 
King's  Bench.  On  the  argument  Lord  Raymond,  C.  J.,  ex- 
pressed himself  not  satisfied  with  the  previous  certificate; 1  but 
before  the  case  was  decided  Lord  Raymond  was  succeeded  by 
Lord  Hardwicke.2  The  case  was  argued  again,  and  the  Court 
sent,  in  1734,3  another  certificate,  in  which  they  declared  that 
the  executory  devise  was  good;  and  Lord  Talbot,  who  was  now 
Chancellor,  decreed  accordingly.  Lord  Raymond,  C.  J.,  and 
Page,  J.,  "doubted  whether  there  was  any  other  rule  which 
the  Court  could  go  by  in  judging  upon  such  a  devise,  than  to 
consider  whether  it  tended  to  a  perpetuity  or  not."  4 

§  175.  In  1736,  in  the  case  of  Stephens  v.  Stephens,5  Lord 
Hardwicke  and  the  other  judges  of  the  King's  Bench  certified, 
and  Lord  Chancellor  Talbot  decided,  that  an  executory  devise 
to  a  child  of  a  person  living  at  the  testator's  death  on  such 
child's  reaching  majority  was  good.  The  judges  came  re- 
luctantly to  this  conclusion,  but  conceived  themselves  bound 
by  Taylor  v.  Biddal.6  Lord  Mansfield,  in  Doe  v.  Fonnereau,7 
said:  "In  Stephens  v.  Stephens  the  Court  took  a  large  stride 
of  twenty-one  years  after  a  life  in  being.  The  argument  was, 
that  this  would  not  create  a  perpetuity.  Former  cases  had 
said  a  limitation  might  be  made  to  take  effect  on  the  death 
of  a  person  in  esse,  or  the  birth  of  a  posthumous  child;  and 
alienation  was  not  restrained  for  any  longer  time  in  Stephens 
v.  Stephens,  for,  if  a  devise  could  hold  to  a  posthumous  child, 
there  could  be  no  alienation  till  he  should  attain  the  age  of 
twenty-one."  The  step  had  perhaps  been  taken  before  Stephens 
v.  Stephens,  but  that  case  may  be  said  to  have  firmly  settled 
the  law,  that  a  future  gift  to  the  child  of  a  living  person  upon 
such  child's  reaching  majority  is  not  too  remote.  The  point 
has  never  been  questioned  since.8 

W.  Kel.  259.  •  2  Mod.    289;  Freem.    K.   B. 

2  Barnard.  K.  B.  355.  243;  see  §  172,  ante. 

2  P.  Wms.  64.  »  2  Doug.  487,  508. 

2  Barnard.  K.  B.  212.  8  The  inconsistency  of  this  ex- 

Cas.  temp.  Talb.  228;  W.  Kel.  tension  with  legal  principle  and  an- 

168;  2  Barnard.  K.  B.  375.  alogy  is  discussed,  §§  187,  188,  post. 


ORIGIN   AND   HISTORY.  151 

10.  Extension  of  the  Rule  so  as  to  cover  a  Term  in  Gross. 

§  176.  The  period  within  which  future  devises  could  be 
created  was  therefore  extended  beyond  lives  in  being  to  cover 
the  minorities  of  the  devisees.  Could  it  be  further  extended? 
and  if  so,  to  what  limit?  In  Pay's  Case  l  (1602)  there  was 
a  devise  to  A.  from  Michaelmas  following  the  testator's  death 
for  five  years,  and  then  to  B.  in  fee.  It  was  held,  without 
argument,  that  the  devise  to  B.  was  good.  The  objection  of 
remoteness  was  not  raised,  nor  at  that  early  day  was  it  likely 
to  be  raised. 

§  176  a.  Massingberd  v.  Ash 2  (1685).  A  term  was  as- 
signed in  trust  for  A.  and  his  wife  during  their  lives  and  the 
life  of  the  survivor,  but  if  there  should  be  issue  male  of  their 
bodies  living  at  the  death  of  the  survivor,  then  to  their  eldest 
son,  but  if  he  died  before  twenty-one  years  of  age,  then  to  the 
second  and  other  sons,  there  being  a  limitation  over  on  the 
death  of  any  son  under  twenty-one  to  the  next  son;  but  if 
there  should  be  no  such  issue  living  at  the  death  of  the  sur- 
vivor of  A.  and  his  wife,  or  if  all  such  issue  should  die  before 
reaching  twenty-one,  then  to  B.  A.  and  his  wife  had  issue 
one  son  who  died  after  A.,  but  in  the  lifetime  of  the  wife.3 
A  case  was  sent  from  Chancery  to  the  Court  of  Common  Pleas, 
the  judges  of  which  certified  that  the  devise  to  B.  was  good; 
and  the  Lord  Keeper  Guilford  decreed  accordingly.  The 
devise  to  B.  was  in  the  alternative,  either  on  the  death  of  the 
issue  before  A.  and  his  wife,  or  upon  their  death  after  their 
parents  under  twenty-one.  The  former  alternative  had  taken 
place,  and  the  devise  to  B.  was  clearly  good,  without  raising 
the  question  whether  it  would  have  been  good  had  the  issue  of 
A.  and  his  wife  outlived  their  parents  and  died  under  twenty- 
one;  but  the  counsel  and  judges  seemed  to  have  considered 

1  Cro.  El.  878;  sub  nom.  Payne          J  See  2  Ch.  Rep.  278,  282.    The 

v.  Ferrall,  Noy,  43;  §  139,  ante.  statement  in  1  Vern.  234,  that  the 

1  2    Ch.    Rep.    275;    sub    nom.  son  died  after  the  wife,  is,  it  seems, 

Massenburgh  v.  Ash,  1  Vern.  234,  wrong. 
257,  304. 


152  THE   RULE   AGAINST  PERPETUITIES. 

the  case  as  involving  the  question  whether  a  limitation  of  an 
estate  to  begin  within  twenty-one  years  after  a  life  in  being 
was  good;  and  the  judges  held  it  good.1  The  Lord  Keeper, 
however,  seems  to  have  put  the  case  rather  on  Wood  v.  Sanders,2 
and  the  death  of  the  issue  in  the  parent's  life.3  This  case 
differs  from  Stephens  v.  Stephens 4  in  that  although  the  period 
of  postponing  a  devise  is  a  minority  it  is  not  the  minority  of 
the  devisee. 

§  177.  In  Davies  v.  Speed  (1692),  in  which  case  a  spring- 
ing use  after  the  indefinite  failure  of  A.'s  issue  was  of  course 
held  too  remote,  Lord  Holt,  C.  J.,8  said  that  a  springing  use 
to  commence  at  the  end  of  four  years  would  be  good,  as  would 
also  one  to  begin  after  the  death  of  A.  without  issue,  if  he  die 
without  issue  within  twenty  years.  But  this  was  obiter  dictum.* 

§  178.  The  case  of  Lloyd  v.  Carew,7  finally  decided  in  1698, 
is  the  foundation  of  that  part  of  the  Rule  against  Perpetuities 
which  allows  a  future  interest  to  be  created  beyond  the  ter- 
mination of  a  life  in  being  without  regard  to  the  minority  of 
any  person.  There  was  a  conveyance  to  A.  and  his  wife  for 
life,  remainder  to  her  children  successively  in  tail,  remainder 
to  A.  in  fee,  provided  that  if  at  the  death  of  the  survivor  of  A. 
and  his  wife  there  should  be  no  issue  of  theirs  then  living,  and 
if  the  heirs  of  the  wife  should,  within  twelve  months  after  such 
death  without  issue,  pay  to  the  heirs  of  A.  £4,000,  then  the  estate 
should  go  to  the  heirs  of  the  wife  forever.  A.  and  his  wife  both 
died  without  leaving  issue  living  at  the  death  of  the  survivor, 
and  the  heir  of  the  wife  tendered  the  £4,000.  The  question  was, 
whether  the  executory  devise  to  the  heir  of  the  wife  was  good.  In 
favor  of  the  executory  devise  it  was  argued  "that  it  was  within 

2  Ch.  Rep.  282,  283.  case,   4  Mod.   153;   12  Mod.   38; 

1  Ch.   Gas.  131;   Pollexf.  35;  Skin.  351;  Garth.  262,  the  remark 

§  161,  ante.  is   not   given.     The   decision   was 

1  Vern.  305.  affirmed   in   the  House  of  Lords; 

See  §  175,  ante.  Show.  P.  C.  104. 

As   reported   in  2  Salk.  675,  7  Free.   Ch.  72,  106;  Show.  P. 

and  Holt,  730.  C.  137. 
•  In   the   other  reports  of  the 


ORIGIN   AND   HISTORY.  153 

the  reason  of  the  contingent  limitations  allowed  in  the  Duke  of 
Norfolk's  Case;  .  .  .  that  the  uUimum  quod  sit  of  a  fee  upon  a 
fee  is  not  yet  plainly  determined;  that  there  could  not  in  reason 
be  any  difference  between  a  contingency  to  happen  during 
life  or  lives  in  being,  and  within  one  year  after;  and  the  reason 
of  allowing  them  to  be  good,  if  confined  to  lives  in  being,  or 
upon  their  decease,  was,  because  no  inconvenience  could  follow, 
and  the  same  rule  will  hold  to  a  year  after;  and  that  the  true 
rule  to  set  bounds  to  them  is,  when  they  prove  inconvenient 
and  not  otherwise."  Against  the  executory  devise  it  was  urged 
that  the  Me  of  one  or  more  persons  in  being  was  "the  furthest 
the  judges  have  ever  gone  in  allowing  contingent  limitations 
upon  a  fee,  and  if  they  should  be  extended  to  contingencies 
to  happen  within  twelve  months  after  the  death  of  one  or 
more  person  or  persons  in  being,  they  may  as  well  be  extended 
to  contingencies  to  happen  within  one  thousand  years;  and  so  all 
the  inconveniences  of  a  perpetuity  will  be  let  in."  :  Sir  John 
Somers,  C.,  assisted  by  Treby,  C.  J.,  and  Rokeby,  J.,  held  that 
the  executory  devise  was  bad.  But  the  Chancellor's  decree  was 
reversed  on  appeal  by  the  House  of  Lords,  Jan.  13,  1698.  It 
is  worthy  of  notice  that  at  this  time,  with  the  exception  of  the 
Chancellor,  there  was  no  law  lord  in  the  House.2 

§  179.  In  Marks  v.  Marks 3  (1718)  an  executory  devise  to 
arise  on  the  payment  of  a  sum  of  money  within  three  months 
after  the  death  of  a  person  living  at  the  death  of  the  testator 
was  held  good  by  Lord  Chancellor  Parker,  assisted  by  Sir 
Joseph  Jekyll,  M.  R.  The  Master  of  the  Rolls  said:  "Though 

1  Free.  Ch.  73,  74.  Cl.  &  F.  372,  422,  that  the  House 
1  16  Lords'  Journals,  192  a,  of  Lords,  in  deciding  Lloyd  v. 
193  b.  The  Earl  of  Macclesfield  Carew,  were  assisted  by  "the  then 
mentioned  as  being  in  the  House  Chief  Justice  of  the  Common 
was  not  the  Chancellor  of  that  Pleas,"  is  wrong.  It  was  the  Chan- 
name,  who  was  not  raised  to  the  cellor,  whose  decree  was  reversed, 
peerage  till  the  reign  of  George  I.  that  was  assisted  by  Chief  Justice 
This  peer  belonged  to  an  earlier  Treby. 

creation,  which  became  extinct  in          *  10  Mod.  419;  1  Stra.  129;  Prec. 

1702.      The    statement    of    Lord  Ch.  486. 
Brougham  in  Cadell  v.  Palmer,   1 


154  THE  RULE  AGAINST   PERPETUITIES. 

before  the  case  of  Lloyd  v.  Carew,  it  seems  to  have  obtained 
for  law,  that  no  executory  devise  of  a  fee  upon  a  fee  should 
be  allowed  of,  unless  upon  a  contingency  to  happen  during 
the  life  of  one  or  more  persons  in  being  at  the  time  of  the 
settlement  .  .  .  yet  since  that  case  which  went  through  the 
House  of  Lords,  and  is  reported  Shower's  Cases  in  Parliament, 
137,  the  law  is  now  settled,  that  in  case  of  a  contingency  that 
cannot  in  the  nature  of  it  precede  the  death  of  a  person,  a  rea- 
sonable time  may  be  allowed  subsequent  to  the  decease  of  that 
person  for  performance  of  the  condition;  and  a  fee  limited 
thereupon  is  good.  In  that  case,  a  year  was  held  no  unreason- 
able time;  a  fortiori  not  three  months,  which  is  the  present 
case."  1 

§  180.  Although  Lloyd  v.  Carew,  followed  by  Marks  v. 
Marks,  settled  that  a  future  interest  might  be  created  within 
a  "reasonable  time"  after  the  expiration  of  lives  in  being,  the 
question  of  what  that  "reasonable  time"  was  remained  unde- 
termined for  more  than  a  century.  In  Massingberd  v.  Ash,2 
decided  in  1685,  thirteen  years  before  Lloyd  v.  Carew,  the 
judges  of  the  Court  of  Common  Pleas  had  declared  of  certain 
limitations  that  "being  limited  and  confined  to  fall  within  the 
compass  of  twenty-one  years"  they  were  good.3  In  Scatter- 
wood  v.  Edge,*  decided  in  1699,  the  year  after  the  House  of 
Lords  had  overruled  Lord  Somers's  decree  in  Lloyd  v.  Carew, 
there  was  a  devise  to  A.  for  eleven  years,  and  subject  thereto 
to  the  first  issue  male  of  B.  and  the  heirs  male  of  his  body, 
provided  they  should  take  upon  themselves  the  surname 
of  E.  B.,  at  the  time  of  the  devise,  had  no  issue.  As  Lord 

1  10  Mod.  422.  686,    were    inserted    in    the    first 

1  2  Ch.  Rep.  275;  sub  nom.  Mas-  edition  under  the  preceding  head, 

senburgh  v.  Ash,  1  Vern.  234,  257,  §§  173,  175,  but  they  come  prop- 

304;   §  176  a,  ante.     The  cases  of  erly  under  this. 

Massingberd   v.    Ash;    Maddox   v.  *  2  Ch.  Rep.  282,  283. 

Staines,  2  P.  Wms.  421;  sub  nom.          *  1  Salk.  229;  sub  nom.  Scatter- 

Staines  v.  Maddock,  3  Bro.  P.  C.  good  v.  Edge,   12  Mod.  278   (see 

(Tonal,  ed.)   108   (see  Fitzg.  318);  Gore  v.   Gore,   2  Barnard.   K.   B. 

and  Stanley  v.  Leigh,  2  P.  Wms.  209). 


ORIGIN  AND   HISTORY.  155 

Thurlow  remarks,1  the  case  of  Scatterwood  v.  Edge  "is  so  ill 
reported,  that  it  is  not  easy  to  discover  what  points  were  deter- 
mined." Blencowe,  J.,  thought  the  devise  to  the  issue  male  of 

B.  good.    Treby,  C.  J.,  and  Neville  and  Powell,  JJ.,  thought 
it  bad.    The  opinion  of  the  two  latter  on  the  point  of  remote- 
ness is  not  clear;  but  that  of  the  Chief  Justice,  at  any  rate,  is 
emphatic.    "There  are  bounds,"  he  says,  "set  to  them  [exec- 
utory devises],  viz.  a  life  or  lives  in  being;  and  further  they 
shall  never  go,  by  my  consent,  at  law,  let  Chancery  do  as  they 
please,"  2  —  an  obvious  reflection  on  Lloyd  v.  Carew,  where  the 
decree  rendered  in  accordance  with  his  advice  had  been  over- 
ruled by  the  House  of  Lords.    The  case  was  affirmed  in  the 
King's  Bench  on  error.    Lord  Holt  is  declared  there  to  have 
said  that  "the  time  in  which  an  executory  devise  was  to  arise 
was  not  then  settled."  3 

§  181.  In  Maddox  v.  Staines 4  there  was  a  bequest  to  A. 
for  life,  and  on  his  death,  to  his  children,  but  if  they  died 
under  age,  then  to  B.  It  was  held  by  Sir  Joseph  Jekyll  that 
the  executory  bequest  to  B.  was  good.  Lord  Chancellor  King 
affirmed  the  decree,  and  his  decree  was  affirmed  by  the  House 
of  Lords.  In  Stanley  v.  Leigh,5  a  devise  of  a  term  with  similar 
limitations  was  elaborately  discussed  by  Sir  Joseph  Jekyll, 
M.  R.,  and  a  gift  over  on  death  under  twenty-one  of  persons 
not  in  being  at  the  testator's  death  was  held  good.  The  Master 
of  the  Rolls  defined  "a  perpetuity,  as  it  is  a  legal  word  or  term 
of  art,"  as  "the  limiting  an  estate  either  of  inheritance  or  for 
years,  in  such  manner  as  would  render  it  unalienable  longer  than 

1  In  Doo  t;.  Brabant,  3  Bro.  C.      is  to   say,  an  estate  unalienable, 

C.  393,  398.  though   all   mankind   join   in   the 

2  12  Mod.  287.  conveyance,"  has  often  been  cited 
*  Gore   v.    Gore,  W.  Kel.  254,      with  approval,  and  has  more  than 

259;  2  Barnard.  K.  B.  209,  212.  one  wrong  decision  to  answer  for. 

See  also  Gore  v.  Gore,  2  Barnard.  See  §  269,  post. 

K.  B.  229,  230.    The  statement  in  4  P.  Wms.  421;  sub  rum.  Stainea 

Salkeld's  report  of  Scatterwood  v.  v.  Maddock,  3  Bro.  P.  C.  (Toml. 

Edge,  attributed  to  all  the  judges,  ed.)  108  (see  Fitzg.  318). 

that  every  executory  devise  is  "a  6  2  P.  Wms.  686. 

perpetuity  as  far  as  it  goes,  that 


156  THE  RULE  AGAINST  PERPETUITIES. 

for  a  life  or  lives  in  being  at  the  same  time,  and  some  short  or 
reasonable  time  after."  In  Maddox  v.  Staines  and  Stanley  v. 
Leigh,  as  in  Massingberd  v.  Ash,1  the  minority  in  question  was 
not,  it  should  be  observed,  the  minority  of  the  executory  devisee 
but  of  a  third  person.  In  Gore  v.  Gore 2  the  judges  of  the  King's 
Bench,  in  their  second  certificate,  given  in  1734,  said  "that  a 
convenient  time  after  the  life  was  to  be  allowed,  according  to 
the  case  of  Lloyd  v.  Carey." 

§  182.  Following  these  is  a  series  of  cases  in  which  the 
courts  are  generally  passing  upon  or  considering  executory 
devises  arising  upon  the  devisee  attaining  his  majority,  but 
in  which  they  express  themselves  in  general  terms.  Thus  in 
Goodtitle  v.  Wood3  (1740):  "The  rule  has  in  many  instances 
been  extended  to  twenty-one  years  after  the  death  of  a  person 
in  being."  So  in  Marlhorough  v.  Godolphin 4  (1759) :  "It  is  true 
that  by  executory  devise  an  estate  may  be  locked  up  for  a  life 
and  lives  in  being  and  twenty  or  twenty-one  years  after." 
So  Lord  Mansfield  in  Goodman  v.  Goodright5  (1759):  "The 
allowed  compass  of  a  Me  or  lives  in  being,  and  twenty-one 
years  after,  which  is  the  line  now  drawn,  and  very  sensibly 
and  rightly  drawn."  6  So  again  Lord  Mansfield  in  Buckworth 
v.  Thirkell 7  (1785):  "I  remember  the  introduction  of  the  rule 
which  prescribes  the  time  in  which  executory  devises  must 
take  effect  to  be  a  life  or  lives  in  being  and  twenty-one  years 
afterwards."  8  Lord  Mansfield  was  called  to  the  bar  in  1730. 
In  Jee  v.  Audley*  (1787)  Sir  Lloyd  Kenyon,  M.  R.,  said: 

§  176  a,  ante.  "That  point  is  well  settled;  and  a 

2  Stra.  958.    See  §  174,  ante.  life  and  twenty-one  years  after  is 

Willes,  211,  213.  the  utmost  extent  for  an   execu- 

1  Eden,  404,  418.  tory  devise;  and  is  no  more  than 

2  Burr.  870;  1  W.  Bl.  188.  the  common   law   allows   in   legal 
2  Burr.  879.     See  Doe  v.  Fon-  limitations,     which    restrains    the 

nereau,  2  Doug.  487,  502,  507,  note,  heir  from  aliening  till  twenty-one." 

That  Lord  Mansfield  had  the  case  2  Harg.  Jurid.  Arg.  102,  103. 

of  a  minority  in  his  mind  is  shown  7  3  B.  &  P.  652,  note;  10  J.  B. 

by  his  remark  during  the  argument  Moore,  235,  note. 

of  this  case  as  given  by  Mr.  Har-  •  3  B.  &  P.  654,  note. 

grave,    ex    relation*    Mr.    Filmer.  •  1  Cox,  324. 


ORIGIN  AND   HISTORY.  157 

"The  limitations  of  personal  estate  are  void,  unless  they 
necessarily  vest,  if  at  all,  within  a  life  or  lives  in  being  and 
twenty-one  years  or  nine  or  ten  months  afterwards.  This  has 
been  sanctioned  by  the  opinion  of  judges  of  all  times,  from 
the  time  of  the  Duke  of  Norfolk's  Case  to  the  present;  it  is 
grown  reverend  by  age,  and  is  not  now  to  be  broken  in  upon." 
And  the  same  learned  judge,  when  Chief  Justice  of  the  Court 
of  King's  Bench,  in  Long  v.  Blackall1  (1797)  said:  "It  is 
an  established  rule  that  an  executory  devise  is  good  if  it  must 
necessarily  happen  within  a  life  or  lives  in  being  and  twenty- 
one  years,  and  the  fraction  of  another  year,  allowing  for  the 
time  of  gestation."  And  in  Thellusson  v.  Woodford 2  (1799) 
Mr.  Justice  Buller  said:  "The  rule  allowing  any  number  of 
lives  in  being,  a  reasonable  time  for  gestation,  and  twenty-one 
years,  is  now  the  clear  law,  that  has  been  settled  and  followed 
for  ages; 3  and  we  cannot  shake  that  rule  without  shaking  the 
foundations  of  the  law."  4 

§  183.  In  none  of  these  cases,  however,  was  the  attention  of 
the  Court  drawn  to  the  distinction  between  a  term  in  gross  and 
the  minority  of  the  devisee,  and  in  most  of  them  the  circum- 
stances, and  in  many  of  them  the  language  of  the  expres- 
sions themselves,  show  that  the  judges  were  thinking  only 
of  minorities.  And  in  Thellusson  v.  Woodford  Lord  Alvan- 
ley,  M.  R.,  said  that  the  period  of  twenty-one  years  had 
never  "been  considered  as  a  term,  that  may  at  all  events  be 
added  to  such  executory  devise  or  trust.  I  have  only  found 
this  dictum;  that  estates  may  be  unalienable  for  lives  in  being 
and  twenty-one  years,  merely  because  a  life  may  be  an  infant, 
or  en  ventre  sa  mere."  5  And  Macdonald,  C.  B.,  in  delivering 
the  opinion  of  the  judges  in  the  House  of  Lords,  said: 
"The  established  length  of  time,  during  which  the  vest- 
ing may  be  suspended,  is  during  a  life  or  lives  in  being, 

1  7  T.  R.  100,  102.    See  s.  c.  3          *  The  "ages"  were  less  than  a 

Ves.  486,  489;  Thellusson  v.  Wood-  hundred  years, 
ford,  11  Ves.  112,  150.  4  4  Ves.  319. 

1  4  Ves.  227;  11  Ves.  112.  6  4  Ves.  337. 


158  THE  RULE  AGAINST  PERPETUITIES. 

the  period  of  gestation,  and  the  infancy  of  such  posthumous 
child."  1 

§  184.  In  Beard  v.  Westcott 2  there  were  devises  over  after 
limitations  which  were  too  remote,  and  on  a  contingency  of 
the  death  under  twenty-one  of  the  unborn  children  of  persons 
living  at  the  testator's  death.  Two  objections  were  made  to 
the  devises  over:  in  the  first  place,  that  they  were  after  remote 
limitations; 3  and,  secondly,  that  the  contingency  had  no  ref- 
erence to  the  minority  of  persons  who  took  under  such  devises. 
Sir  William  Grant,  M.  R.,  sent  the  case  to  the  Court  of  Com- 
mon Pleas,  which  in  1810 4  certified  that  the  limitations  over 
were  good.5  Sir  William  Grant  doubted  how  far  this  term 
of  twenty-one  years  could  be  thus  taken,  and  ordered  the  Court 
to  be  again  attended  with  the  case  on  this  particular  ques- 
tion; 6  and  in  1813  the  Court  returned  a  certificate  to  this 
additional  query,  that  the  case  was  not  affected  by  the  fact 
that  the  gifts  over  might  take  effect  "at  the  end  of  an  absolute 
term  of  twenty-one  years  after  a  life  in  being  at  the  death  of 
the  testator,  without  reference  to  the  infancy  of  the  person 
intended  to  take."  7  Lord  Eldon,  not  being  satisfied  with 
these  certificates,  sent  the  case  in  1822  to  the  Court  of  King's 
Bench.8  The  case  sent  called  particular  attention  to  the  fact 
that  the  period  of  twenty-one  years  did  not  correspond  to  the 
infancy  of  the  person  intended  to  take  the  gift  over; 9  and  the 
question  was  elaborately  argued  by  Mr.  Sugden  for  the  plain- 
tiff and  Mr.  Preston  for  the  defendant.  The  Court  sent  a 

1  11  Ves.  143.  must  be  correct,  because  Sugden's 

1  5  Taunt.  393;  5  B.  &  Aid.  801;  edition  of  Gilbert  was  published 

T.  &  R.  25.  in  1811.    See  also  Cadell  t>.  Palmer, 

1  As  to  the  validity  of  this  objec-  1  Cl.  &  F.  372,  394. 
tion,  see  §  252  et  seq.,  post,  where  6  See  this  first  certificate  of  the 

the  case  is  more  fully  stated.  Court  of  Common  Pleas  criticised 

4  The  date  of  the  certificate  is  by  Sugden  in  his  edition  of  Gilbert 

given,    5  Taunt.   407,  as   28   No-  on  Uses,  274,  275,  note, 
vember,  1812,  but  it  is  printed  at  •  5  Taunt.  407,  408. 

length  in  Gilbert's  Uses  (Sugd.  ed.)  7  5  Taunt.  413. 

272-274,  note,  and  is  there  dated  8  5  B.  &  Aid.  801. 

28  November,  1810;  and  this  last          •  5  B.  &  Aid.  805. 


ORIGIN  AND  HISTORY.  159 

short  certificate  that  the  limitations  over  were  bad.1  Upon 
the  hearing  in  Chancery  it  was  urged  on  their  behalf  that  it 
could  not  be  collected  from  the  certificate  "whether  the  cir- 
cumstance that  the  limitations  were  to  take  effect  at  the  end 
of  a  term  of  twenty-one  years,  without  reference  to  the  infancy 
of  the  person  intended  to  take,  created  such  a  suspense  of  the 
vesting  as  to  render  the  limitations  void;"  but  the  Lord  Chan- 
cellor said  it  was  "impossible  that  the  Court  of  King's  Bench 
should  not  have  considered  that  point,"  and  confirmed  the  cer- 
tificate, adding:  "The  inclination  of  my  opinion  is  that  the 
Court  of  King's  Bench  is  right." 2  Mr.  Justice  Bayley,  how- 
ever, who  signed  the  certificate,  afterwards  delivered  the  opin- 
ion of  the  judges  in  Cadell  v.  Palmer,3  and  in  that  opinion  said 
that  the  foundation  of  the  certificate  of  the  Court  of  King's 
Bench  "was  that  a  previous  limitation,  clearly  too  remote, 
and  which  was  so  considered  by  the  Court  of  Common  Pleas, 
made  those  limitations  also  void  which  the  Common  Pleas 
had  held  good.  The  subsequent  limitations  were  considered 
as  being  void,  not  from  any  infirmity  existing  in  themselves, 
but  from  the  infirmity  existing  in  the  preceding  limitation; 
and  because  that  was  a  limitation  too  remote,  the  others  were 
considered  as  being  too  remote  also.  Whether  the  Court  of 
King's  Bench  gave  any  positive  opinion  on  that,  I  am  unable 
to  say.  I  think  the  Court  of  King's  Bench  would  have  taken 
much  more  time  to  consider  that  point  than  they  did,  and  have 
given  it  greater  consideration  than  it  received,  if  they  had 
intended  to  differ  from  the  certificate  that  had  been  given 
by  the  Court  of  Common  Pleas;  but  when  it  became  totally 
immaterial,  in  the  construction  they  were  putting  upon  the 
will,  to  consider  whether  they  were  or  were  not  prepared  to 
differ  from  the  Court  of  Common  Pleas,  it  is  not  to  be  wondered 
at  that  that  point  was  not  so  fully  considered  as  it  might 
otherwise  have  been."  4 

§  185.   Mr.  Justice  Bayley  may  or  may  not  have  been  right 

1  5  B.  &  Aid.  814,  815.  »  1  Cl.  &  F.  372. 

*  T.  &  R.  25.  •  1  Cl.  &  F.  420,  421. 


160  THE   RULE   AGAINST  PERPETUITIES. 

in  his  recollection  of  the  ground  of  the  certificate  of  the  Court 
of  King's  Bench  given  eleven  years  before.  But  it  seems  clear 
that  Sir  William  Grant  and  Lord  Eldon  were  both  inclined  to 
agree  with  Lord  Alvanley's  opinion,  expressed  in  Thellusson 
v.  Woodford,1  that  a  gross  term  of  twenty-one  years  could  not 
be  taken  in  fixing  the  limits  of  remoteness;  and  the  point  was 
not  settled  until  the  case  of  Bengough  v.  Edridge;*  s.  c.  in 
Dom.  Proc.  sub  nom.  Cadell  v.  Palmer.3  This  case  was  argued 
in  the  fullest  manner  before  Sir  John  Leach,  V.  C.,  and  on 
appeal  to  the  House  of  Lords,  by  Mr.  Preston  and  Mr.  Sugden. 
The  Vice-Chancellor  held,4  in  1826,  that  the  term  of  twenty-one 
years  could  be  taken  without  reference  to  the  minority  of 
anyone.5  In  the  House  of  Lords,  in  1832,  the  judges  were 
summoned,  and  eleven  attended,6  and  declared  that  the  term 
of  twenty-one  years  need  have  no  reference  to  the  minority  of 
a  devisee,  nor,  indeed,  to  any  minority  at  all.  The  Lords,  in 
accordance  with  this,  affirmed  the  decree.  Lord  Brougham,  C., 
moving  the  affirmance  of  the  decree,  said  that  the  decision  of 
the  House  in  Lloyd  v.  Carew  7  "settled  the  rule." 

11.   Extensions  of  the  Rule  not  to  be  justified  on  Principle. 

§  186.  Cadell  v.  Palmer,  of  course,  closed  all  controversy 
in  England,  nor  does  any  question  ever  seem  to  have  been 
made  in  America  of  the  propriety  of  allowing  a  gross  term. 
Certainly  the  allowance  of  a  gross  term  of  some  length  is 
highly  convenient.  But  the  result  seems  to  have  been  ar- 
rived at  by  accident  rather  than  by  any  process  of  judicial 
reasoning.  In  the  Duke  of  Norfolk's  Case  8  it  was  held  that 
any  limitation  is  good  which  must  take  effect  within  lives 
in  being.  Soon  after  this  an  attempt  was  made  to  extend 
the  period  beyond  lives  in  being,  but  two  of  the  most  emi- 

1  4  Ves.  227,  337;  §  183,  ante.  8  See   Sugd.  Law  of   Property, 

*  1  Sim.  173.  314. 

*  1  |C1.  &  F.  372;  7  Bl.  N.  s.  202;          •  1  Cl.  &  F.  411. 

10  Bing.  140.  7  Show.  P.  C.  137;  §  178,  ante. 

*  1  Sim.  267.  8  3  Ch.  Gas.  1;  §  169,  ante. 


ORIGIN  AND  HISTORY. 


161 


nent  lawyers  of  the  time  (indeed,  with  the  exception  of  Sir 
John  Holt,  longo  intervallo  above  their  contemporaries),  Lord 
Somers  and  Chief  Justice  Treby  (assisted  by  Mr.  Justice 
Rokeby),  decided,  in  Lloyd  v.  Carew,  that  it  could  not  be  done. 
They  were,  however,  overruled  by  a  body  of  laymen.1  Then 
came  the  case  of  Stephens  v.  Stephens,2  where  there  was  a  gift 
on  majority  to  the  unborn  child  of  a  living  person.  The  Court 
allowed  the  gift  unwillingly,  upon  the  authority  of  Taylor 
v.  Biddal 3  (a  case  decided  before  the  Duke  of  Norfolk's  Case, 
and  of  which  the  reports  are  inconsistent),  and  because  there 
was  no  real  restraint  on  alienation.4  And  finally  came  Cadell 
v.  Palmer*  where  a  gross  term  of  twenty-one  years  was 
allowed  on  the  strength  of  Lloyd  v.  Carew.6 


1  Free.  Ch.  72,  106;  Show.  P.  C. 
137;  §  178,  ante. 

1  Gas.  temp.  Talb.  228;  §  175, 
ante. 

•  2    Mod.    289;  Freem.   K.   B. 
243. 

4  §  172,  ante. 
6  1  Cl.  &  F.  372. 

•  Lord    Brougham,    who    gave 
the  opinion  in  Cadell  v.  Palmer, 
subsequently     more     than     once 
pointed  out  the  illogical  process  by 
which   the   allowance   of    a   gross 
term  of  twenty-one  years  was  ar- 
rived at.    Cadell  v.  Palmer  "went, 
in  my  opinion,  no  further  than  at 
least  one  case  of  great  authority, 
and  decided  in  this  House,  though 
it  may  have  gone  further  than  the 
original  reason  of  the  rule  author- 
ized."    Tollemache  v.  Coventry,  2 
Cl.  &  F.  611,  624.     "The  Courts, 
and    even    this    House,  .  .  .  have 
sanctioned  what  even  plainly  ap- 
peared to  be  erroneous  principles, 
introduced   and   long   assumed   as 
law,  rather  than  occasion  the  great 
inconvenience  '  which    must    arise 
from  correcting  the  common  error, 


and  recurring  to  more  accurate 
views.  Accordingly,  when  Cadell 
v.  Palmer  was  argued  in  this  House, 
I  advised  that  your  Lordships 
should  abide  by  the  received  ex- 
tension which  had  for  a  great 
length  of  time  been  given  to  the 
period  within  which  an  executory 
devise  might  be  held  good."  Phipps 
v.  Ackers,  9  Cl.  &  F.  583,  598. 
"The  rule  of  law  is  the  term  in 
gross  of  twenty-one  years  after 
the  life  or  lives  in  being;  that  was 
clearly  laid  down  by  your  Lord- 
ships upon  my  recommendation, 
after  hearing  the  learned  judges  in 
the  case  of  Cadell  v.  Palmer,  and  it 
is  quite  unnecessary  to  go  back  to 
the  foundation  of  the  law;  I  have 
a  strong  opinion,  which  I  believe  is 
joined  in  by  the  profession  at  large, 
that  it  arises  out  of  an  accidental 
circumstance,  out  of  a  confusion, 
I  may  say,  a  misapprehension  in 
confounding  together  the  nature  of 
the  estate  with  the  remedy  at  law 
by  fine  and  recovery,  which  could 
not  be  applied  till  a  certain  life 
came  to  twenty-one  years."  Dun- 


162  THE   RULE   AGAINST  PERPETUITIES. 

§  187.  The  true  theory  of  the  Rule  against  Perpetuities,  so 
far  as  any  artificial  rule  can  be  said  to  have  a  theory,  is  that 
no  future  interest  must  begin  beyond  lives  in  being.  The 
question  to  be  asked  of  any  estate  on  condition  precedent  is: 
"When  must  the  contingency  happen,  if  at  all?"  But  the 
mistake  which  is  constantly  recurring,  and  which  has  caused 
so  much  confusion,  is  that  judges  and  legislators  have  con- 
sidered, not  when  will  the  future  estate  begin,  but  how  long 
will  it  be  before  an  absolute  fee  can  be  conveyed.1  That  mis- 
take occurred  here;  the  judges  did  not  consider  when  the  future 
interest  would  begin;  they  considered  how  long  it  would  be 
before  a  fee  simple  could  be  conveyed,  and  they  said:  "An 
executory  devise  may  be  postponed,  it  is  conceded,  to  the  end 
of  a  life  estate.  There  can  be  no  harm  in  extending  the  time 
till  the  person  who  takes  the  land  on  the  termination  of  the  life 
estate  reaches  twenty-one,  for  until  he  becomes  of  age  he  could 
not  convey  the  land,  even  if  there  were  no  executory  devise.'* 
This  step  the  judges  took,  though  unwillingly,  in  Stephens  v. 
Stephens.  And  this  is  all  for  which  they  are  really  responsible. 
The  allowance  of  a  gross  term  can  be  traced  to  the  unlearned 
peers  overruling  the  sages  of  the  law  in  Lloyd  v.  Carew. 

§  188.   How  unjustifiable  was  the  step  taken  in  Stephens  v. 

gannon  v.  Smith,  12  Cl.  &  F.  546,  estate  cannot  be  affected,  and  for 
629,  630.  The  rule  that  you  can  that  reason,  says  the  law,  you  shall 
take  a  gross  term  "most  clearly  have  the  twenty-one  years  added, 
arises  from  a  mistake.  The  law  because  that  is  the  fact  and  not 
never  meant  to  give  a  further  term  the  law,  namely,  that  till  a  person 
of  twenty-one  years,  much  less  any  reached  the  age  of  twenty-one  he. 
period  of  gestation.  The  law  never  could  not  cut  off  the  entail.  For 
meant  to  say  that  there  shall  be  that  reason  and  in  that  way  it  has 
twenty-one  years  added  to  the  life  crept  in  by  degrees;  Communis  error 
or  lives  in  being,  and  that  within  facit  jus;  and  that  rule  never  was 
those  limits  you  may  entail  the  applied  more  accurately  than  in 
estate;  but  what  the  law  meant  to  Cadell  v.  Palmer."  Cole  v.  Sewell, 
say  was  this:  until  the  heir  of  the  2  H.  L.  C.  186,  233.  See  Lord  St» 
last  of  the  lives  in  being  attains  Leonards,  in  Sugd.  Law  of  Prop- 
twenty-one,  by  law  a  recovery  erty,  315,  316;  and  Gilbert,  Usea 
cannot  be  suffered,  and  conse-  (Sugd.  ed.)  260  et  seq.,  note, 
quently  the  discontinuance  of  the  *  See  §§  278  et  seq.,  post. 


ORIGIN   AND   HISTORY.  163 

Stephens  is  easily  shown.  Every  reason  which  could  be  then 
urged  for  extending  the  period  for  creating  an  executory  devise 
to  a  minority  after  a  life  in  being  could  now  be  used  for  ex- 
tending it  to  a  minority  after  an  absolute  term  of  twenty-one 
years.  Suppose  a  devise  is  made  to  such  of  the  great-grand- 
children of  the  testator  living  twenty-one  years  after  his  death 
as  reach  twenty-one.  Until  such  great-grandchild  reaches 
twenty-one  he  cannot  convey  his  share:  what  harm,  then,  in 
extending  the  time  till  he  reaches  twenty-one?  But  such 
reasoning  would  not  be  considered  valid  now;  it  ought  not 
to  have  been  considered  valid  then.  To  take  account  of  the 
disability  of  infancy  in  considering  the  validity  of  limitations 
is  entirely  contrary  to  the  analogy  of  the  law.  An  estate  in 
fee  simple  or  in  tail  may  pass  from  infant  to  infant  for  centuries 
without  being  at  any  time  alienable  or  barrable.  In  fact,  the 
Rule,  in  its  present  shape,  by  which  an  arbitrary  term  of 
twenty-one  years  is  taken,  is  less  inconsistent  with  legal  prin- 
ciple and  analogy  than  it  was  to  make  the  validity  of  the  ex- 
tension of  the  period  for  creating  future  interests  depend  upon 
the  actual  presence  or  absence  of  minority  in  a  devisee. 

12.  Any  Number  of  Lives  in  esse  Allowed. 

§  189.  Notwithstanding  the  statements  in  Goring  v.  Bick- 
er staff  e  l  and  Love  v.  Wyndham2  that  any  number  of  lives  in 
being  might  be  taken  to  compose  the  period  during  which  the 
creation  of  future  estates  would  be  lawful,  Treby,  C.  J.,  is  said, 
in  Luddington  v.  Kime,3  to  have  been  of  opinion  "that  the 
time  allowed  for  executory  devises  to  take  effect  ought  not  to 
be  longer  than  the  life  of  one  person  then  in  esse."  But  in 
Scatterwood  v.  Edge*  the  Court  of  Common  Pleas  is  said  to 
have  agreed  in  holding  that  "the  compass  of  a  life  or  lives" 
was  a  reasonable  time,  "  for  let  the  lives  be  never  so  many, 
there  must  be  a  survivor,  and  so  it  is  but  the  length  of  that 

1  Freem.    Ch.    163,   166;  §  163,  »  1  Ld.  Raym.  203,  207. 

ante.  *  1  Salk.  229;  §  180,  ante. 

1  1  Mod.  50,  64;  1  Sid.  450,  451; 
§  167,  ante. 


164  THE   RULE   AGAINST  PERPETUITIES. 

life."  And  Lord  Hardwicke,  in  Hopkins  v.  Hopkins,1  said: 
"It  is  not  (in  my  opinion)  material  to  restrain  it  to  the  life 
of  tenant  for  life  of  the  land,  provided  it  be  restrained  to  the 
life  of  a  person  in  being."  2 

§  190.  Finally,  in  1798,  came  the  great  case  of  Thellusson 
v.  Woodford.3  A  testator  gave  a  large  fortune  to  accumulate 
until  all  of  his  sons  and  grandsons  and  grandsons'  children 
who  were  living  at  his  death  were  dead,  and  then  to  be  paid 
over.  He  left  three  sons  and  six  grandsons  him  surviving. 
Lord  Loughborough,  assisted  by  Lord  Alvanley,  M.  R.,  and 
Buller  and  Lawrence,  JJ.,  held  the  gift  over  good,  and  the 
House  of  Lords,  on  the  unanimous  opinion  of  the  judges, 
affirmed  the  decree.  The  eccentricity  of  the  will  and  the 
large  amount  involved  excited  great  interest  in  the  case.  The 
arguments  were  of  the  most  elaborate  character,4  and  the 
judges  did  not  conceal  their  dislike  of  the  will,  but  no  one  of 
the  many  eminent  lawyers  who  took  part  in  the  decision  seems 
to  have  felt  any  doubt  in  the  case.5 

13.    The  Connection  of  the  Rule  against  Perpetuities  with  the  In- 
validity of  Remainders  for  Life  to  Successive  Generations.6 

§  191.  One  point  remains  to  be  considered.  It  is  some- 
times said  that  there  is  a  rule  of  the  common  law  that  you 

1  1  Atk.  580,  596.  "It  is  well  known  that  the  late 

1  See  Low  v.  Burron,  3  P.  Wms.  Chief  Justice  of  the  Court  of  King's 

262,  265;  2  Harg.  Jurid.  Arg.  135,  Bench  [Lord  Kenyon]  could  hardly 

note  (w) ;  and  Humberston  v.  Hum-  be  brought   to   think   any  of  the 

berston,  1  P.  Wms.  332;  2  Vern.  questions  in  this  case  fit  for  argu- 

738;  Prec.  Ch.  455;  Gilb.  Eq.  128.  ment."     11  Ves.  144.     See  further 

»  4  Ves.  227;  11  Ves.  112.  on  this  matter,  §§  216  et  seq.,  post. 

4  The  three  days'  argument  of  The    history    of    the    develop- 

Mr.  Hargrave  against  the  validity  ment  of  the  law  of  future  inter- 

of  the  executory  devise  was  pub-  ests,   and   especially   of   the   Rule 

lished  by  him  in  the  second  volume  against    Perpetuities,    is    not    the 

of  his  Juridical  Arguments.     It  is  least  valuable  part  of  Mr.  Lewis's 

an  agreeable  duty  to  recognize  the  valuable  work, 
debt  which  every  student  of  the  «  See  §§  125-134,  ante;  §§  284- 

history  of  the  Rule  against  Per-  298  h,  App.  K,   §  931,  post,  which 

petuities  owes  to  it.  should  be  consulted  in  connection 

1  Lord  Eldon  in  his  opinion  said:  with  this  subdivision. 


ORIGIN  AND   HISTORY.  165 

cannot  limit  legal  remainders  for  life  to  successive  generations, 
and  that  from  this  rule  the  Rule  against  Perpetuities  is  derived. 
The  opposite  is  believed  to  be  the  case,  and  that  the  former  rule 
is  simply  an  instance  of  the  latter.  No  suggestion  of  the  rule 
that  you  cannot  limit  life  estates  in  remainder  to  successive 
generations  makes  its  appearance  until  the  eighteenth  century, 
long  after  the  Rule  against  Perpetuities  was  firmly  established. 
It  has  been  alleged  that  the  doctrine  that  you  cannot  limit  a  re- 
mainder to  the  issue  of  an  unborn  person  is  an  instance  of  the 
doctrine  that  you  cannot  have  a  possibility  upon  a  possibility. 
But  this  notion  of  a  possibility  upon  a  possibility  was  an  inno- 
vation in  the  law,  and  was  repudiated  in  the  Duke  of  Norfolk's 
Case.1  The  only  instance  of  an  invalid  possibility  on  a  possi- 
bility, as  given  by  Lord  Coke,  which  is  a  remainder  to  the  issue 
of  an  unborn  person,  is  a  remainder  to  the  heirs  of  J.  S.  He 
says  that  if  J.  S.  is  born  and  dies  during  the  particular  estate, 
the  remainder  is  void.  But  such  a  remainder  takes  effect,  if  at 
all,  at  the  termination  of  the  particular  estate,  and  would  be 
held  good  at  the  present  day.2  In  fact,  to  say  that  you  cannot 
give  a  remainder  to  the  issue  of  an  unborn  person  is  not  cor- 
rect. On  a  gift  to  a  man  now  unmarried  for  life,  a  remain- 
der to  his  grandchildren  is  good.  The  true  expression  of  the 
rule,  even  supposing  it  to  be  distinct  from  the  Rule  against 
Perpetuities,  is  that  you  cannot  give  successive  contingent 
remainders  for  life.  And  that  even  such  limitations  were  not 
considered  bad  until  after  the  establishment  of  the  Rule  against 
Perpetuities,  appears  from  the  case  of  Manning  v.  Andrews.3 

§  192.  That  for  a  long  time  no  question  with  regard  to 
remoteness  arose  on  remainders  is  not  surprising.  Remainder 
there  could  be  none  after  an  estate  in  fee  simple;  a  remainder 
after  a  fee  tail  could  be  barred  at  will;  a  contingent  remainder 
after  a  life  estate  could  practically  be  barred  by  a  fine,  and 

1  3  Ch.  Gas.  1,  29.  See  §§  125-  »  1  Leon.  256,  stated  §  132, 
133,  ante.  132  a,  ante. 

*  See  Routledge  v.  Donil,  2  Ves. 
Jr.  357,  366. 


166  THE   RULE  AGAINST  PERPETUITIES. 

no  contingent  remainder  was  good  after  an  estate  for  years. 
The  reason  why  so  many  cases  of  remoteness  arose  concerning 
executory  devises  and  other  conditional  limitations  is  that  they 
were  indestructible.  The  destructibility  of  legal  remainders 
prevented  any  question  arising  concerning  their  remoteness.1 
§  193.  The  first  case  in  which  any  question  of  the  validity 
of  successive  remainders  for  life  came  before  the  courts  was 
Humberston  v.  Humberston,2  in  1717,  more  than  thirty  years 
after  the  doctrine  of  remoteness  had  been  settled  in  the  Duke 
of  Norfolk's  Case.3  "One  Matthew  Humberston  (reported  to 
have  been  formerly  a  Christ-Hospital  Boy)  devised  his  estate, 
which  was  very  considerable,  to  the  Draper's  Company  and 
their  successors,  in  trust  to  convey  the  premises  to  his  godson 
Matthew  Humberston  for  Me,  and  afterwards  upon  the  death 
of  the  said  Matthew  to  his  first  son  for  life,  and  so  to  the  first 
son  of  that  first  son  for  life,  etc.,  and  if  no  issue  male  of  the 
first  son,  then  to  the  second  son  of  the  said  Matthew  Humber- 
ston for  life,  and  so  to  his  first  son,  etc.,  and  in  failure  of  such 
issue  of  Matthew,  then  to  another  Matthew  Humberston  for 
life,  and  to  his  first  son  for  life,  etc.,  with  remainders  over  to 
very  many  of  the  Humberstons  (I  think  about  fifty),  for  their 
lives  successively,  and  their  respective  sons,  when  born,  for 
their  lives,  without  giving  an  estate  in  tail  to  any  of  them,  or 
making  any  disposition  of  the  fee."  Lord  Cowper,  C.,  said 
that  an  attempt  to  make  a  perpetuity  for  successive  lives  was 
vain.  There  is  not  a  word  about  a  possibility  on  a  possibility.4 

1  The  device  of  giving  the  free-          3  3  Ch.  Gas.  1. 
hold  to  trustees  to  preserve  con-  4  Mr.  Sweet  is  of  opinion  that 

tingent    remainders,    and    thereby  the    Lord    Chancellor    used    "per- 

preventing  the  tenant  for  life  from  petuity"  in  the  sense  of  an  unbar- 

destroying  the  contingent  remain-  rable  estate  tail.  1  Jarm.  Wills  (6th 

ders,    was    not    invented    till    the  ed.)  283,  note  (n).    This  may  well 

middle  of  the  seventeenth  century.  be.    On  the  bearing  of  this  sugges- 

Garth  v.  Cotton,  1  Dick.  183,  188,  tion  upon  Mr.  Sweet's  theory  that 

191;  1  Ves.  Sr.  524;  1   Jurid.  Soc.  the  invalidity  of  remainders  to  suc- 

Papers,  53-55.  cessive  generations  is  a  result  from 

*  1  P.  Wms.  332;  2  Vern.  738;  the   barrable   character  of  estates 

Prec.  Ch.  455;  Gilb.  Eq.  128.  tail,  see  App.  K,  §§  943,  944,  post- 


ORIGIN   AND   HISTORY.  167 

§  194.  In  Hopkins  v.  Hopkins l  (1739)  Lord  Hardwicke 
said  that  he  did  not  see  how  an  estate  could  be  devised  to 
trustees  and  their  heirs  to  hold  until  the  birth  of  a  son  of  a 
daughter  of  A.,  which  daughter  was  unborn  at  the  testator's 
death,  and  then  to  such  son; 2  but  there  is  nothing  said 
about  a  possibility  on  a  possibility,  nor  any  indication  that 
a  different  rule  would  apply  in  case  of  a  remainder  than  in 
case  of  an  executory  devise;  and  indeed  the  gift  to  the 
daughter's  son,  if  good,  would  have  been  an  executory  devise, 
and  not  a  remainder.3 

§  195.  The  first  suggestion  to  be  found  in  the  books  that 
the  doctrine  of  the  invalidity  of  successive  remainders  for  life 
is  an  independent  original  rule,  and  that  the  provisions  of 
law  concerning  remoteness  in  conditional  limitations  have 
been  copied  from  it,  is  to  be  found  in  Lord  Keeper  North- 
ington's  judgment  in  Marlborough  v.  Godolphin*  In  that 
case,  decided  by  the  Lord  Keeper  in  1759,  there  was  a  devise 
to  trustees  for  the  use  of  several  persons  for  life,  remainder  to 
the  use  of  their  first  and  other  sons  successively  in  tail  male, 
with  a  direction  to  the  trustees  on  the  birth  of  each  of  such 
sons  to  revoke  the  use  to  him,  and  limit  the  use  to  him  for 
life,  remainder  to  his  first  and  other  sons  successively  in  tail 
male.  Lord  Keeper  Northington  held  the  direction  void.  He 
said:  "It  is  agreed  that  the  Duke  of  Marlborough  could  not 
have  done  this  by  limitation  of  estate;  because,  though  by 
the  rules  of  law  an  estate  may  be  limited  by  way  of  contin- 
gent remainder  to  a  person  not  in  esse  for  life,  or  as  an  in- 
heritance, yet  a  remainder  to  the  issue  of  such  contingent 
remainder-man  as  a  purchaser  is  a  limitation  unheard  of  in 
law,  nor  ever  attempted,  as  far  as  I  have  been  able  to  dis- 
cover. Why  the  law  disallowed  these  kind  of  limitations  I 

1  West,    606;    1    Atk.    580;    1          *  West,  629;  1  Atk.  596. 
Ves.    Sr.    268;     Co.     Lit.    271  6,  »  See  Lewis,  Perp.  413-415. 

Butler's  note  VII.  2.    See  Abbiss  4  1  Eden,  404;  in  Dom.  Proc. 

v.  Burney,  17  Ch.  D.  211;  70  L.  T.  sub  nom.  Spencer  v.  Marlborough, 

146.  3  Bro.  P.  C.  (Toml.  ed.)  232. 


168  THE   RULE  AGAINST  PERPETUITIES. 

will  not  take  upon  me  to  say;  because  I  have  never  met,  in 
the  compass  of  my  reading,  with  any  reason  assigned  for  it: 
and  I  shall  not  hazard  any  conjecture  of  my  own;  for  techni- 
cal reasons  upheld  by  old  repute,  and  grown  reverend  by  length 
of  years,  bear  great  weight  and  authority;  but  a  new  technical 
reason  appears  with  as  little  dignity  as  an  usurper  just  seated 
in  his  chair  of  state.  So  far,  however,  is  plain,  that  the  com- 
mon law  seemed  wisely  to  consider  that  the  real  property  of 
this  state  ought,  to  a  degree,  to  be  put  in  commerce,  to 
be  left  free  to  answer  the  exigencies  of  the  possessors  and 
their  families,  and  therefore  admitted  no  perpetuities  by  way 
of  entails;  and  though  it  allowed  contingent  remainders,  it 
afforded  them  no  protection.1  ...  It  was  said  in  the  argument 
on  this  case,  that  it  is  determined  that  a  person  may,  by  exec- 
utory devise,  make  an  estate  unalienable  for  one  life  in  being, 
and  twenty  or  twenty-one  years  after,  but  that  the  time  not 
to  be  exceeded  is  nowhere  defined,  therefore  that  I  might  as 
well  extend  it  beyond  that  period,  as  others  have  to  it.  It 
is  true  that  by  executory  devise  an  estate  may  be  locked  up 
for  a  life  or  lives  in  being,  and  twenty  or  twenty-one  years 
after.  And  that  is  in  conformity  to  the  course  of  limitations, 
and  the  methods  of  conveyance  at  law;  for  a  limitation  may 
be  to  one  for  Me,  with  remainder  to  a  person  unborn  in  tail  or 
in  fee.  If  there  are  trustees  to  support  contingent  remainders, 
the  remainder  cannot  be  barred  by  the  tenant  for  life,  nor  can 
it  be  conveyed  by  the  remainder-man  till  he  attains  the  age 
of  twenty-one.  Therefore  the  sages  of  the  law  have  properly 
allowed  a  perpetuity  as  far  in  executory  devises,  which  are 
accommodated  to  the  exigencies  in  families,  as  in  legal  limi- 
tations. ...  I  have  thus  far  considered  this  case  upon  its 
general  tendency  to  a  perpetuity,  beyond  what  I  conceive  the 
rules  of  law  allow."  2 

§  196.   The  case  was  carried  to  the  House  of  Lords,  and 
there  affirmed  in  accordance  with  the  unanimous  opinion  of 

1  1  Eden,  415,  416.  the  argument  for  the  plaintiff,  pp. 

»  1  Eden,  418,  419.     See,  too,      408-411. 


ORIGIN   AND   HISTORY.  169 

the  judges.1  In  the  argument  of  the  counsel  for  the  respond- 
ent it  is  said:2  "If  the  grantor  should,  after  the  first  vested 
estate  of  freehold,  limit  a  contingent  estate  or  use  for  life  to 
a  person  unborn,  and  then  follow  it  with  contingent  remainders 
in  tail  to  the  sons  or  children  of  such  unborn  tenant  for  life, 
such  contingent  limitations  of  the  inheritance  would  be  void. 
This  arises  from  the  policy  of  the  law  against  perpetuities, 
that  the  vesting  of  the  inheritance  or  ownership  may  not  be 
suspended  beyond  the  compass  of  a  life  or  lives  in  being,  or 
beyond  the  age  of  twenty-one  of  the  first  unborn  tenant  in  tail, 
during  whose  infancy  the  law  itself  will  restrain  his  power  of 
alienation."  Lord  Northington  seems  to  have  regarded  the 
rule  against  limiting  successive  life  estates  in  remainder  as 
an  independent  doctrine.  He  admits  that  he  searched  for  the 
reason  in  vain,  which  is  not  strange,  for  no  trace  of  such  in- 
dependent doctrine  is  to  be  found.  He  is  the  first  to  mention 
it.  It  is  submitted  that  the  statement  of  the  counsel  in  the 
House  of  Lords,  that  the  doctrine  is  a  corollary  of  the  Rule 
against  Perpetuities,  is  not  only  more  reasonable,  but  is  his- 
torically correct. 

§  197.  Lord  Northington  did  not  base  the  doctrine  against 
successive  life  estates  on  any  theory  of  the  illegality  of  a  pos- 
sibility upon  a  possibility.  We  first  find  it  referred  to  this 
theory  in  1765,  eighty  years  after  it  might  have  been  hoped 
that  such  theory  had,  in  the  Duke  of  Norfolk's  Case,3  received 
its  quietus.  Chapman  v.  Brown*  turned  on  special  circum- 
stances, but,  with  reference  to  a  limitation  to  an  unborn  person 
for  life,  remainder  to  his  issue  in  tail,  Lord  Mansfield,  C.  J., 
said:  "A  possibility  cannot  be  devised  upon  a  possibility;"6 

1  3  Bro.  P.  C.  (Toml.  ed.)  232.  notion  that  a  "possibility  upon  a 

1  Bro.  P.  C.  (Toml.  ed.)  245.  possibility"  was  bad,  was  probably 

*  3  Ch.  Gas.  1.  due,  but  the  reputation  of  Lord 

4  3  Burr.  1626;  3  Bro.  P.  C.  Mansfield  as  a  commercial  lawyer 

(Toml.  ed.)  269.  should  not  blind  us  to  the  fact  that 

6  3  Burr.  1634.  he  was  not  equally  great  in  the 

It  is  to  this  remark  of  Lord  law  of  real  property.  For  instance, 

Mansfield  that  the  revival  of  the  his  decision  on  the  Rule  in  Shelley's 


170 


THE   RULE  AGAINST  PERPETUITIES. 


and  Wilmot,  J.,  said:  "You  cannot  limit  a  nonentity  upon, 
a  nonentity,  a  possibility  upon  a  possibility."  l  How  little 
these  phrases  were  understood  as  indicating  the  existence  of 
any  other  reason  than  remoteness  for  the  invalidity  of  such 
limitations  is  shown  by  the  argument  of  counsel  for  the  de- 
fendants in  error  before  the  House  of  Lords,  where  the  case 
was  carried  and  affirmed.  They  said  that  the  intent  of  the 
testator  "could  not  take  effect;  as  it  would  establish  a  limi- 
tation of  a  possibility  upon  a  possibility,  and  manifestly  tend 
to  a  perpetuity,  by  a  suspension  of  the  inheritance  from  vest- 
ing, and  consequently  render  the  estate  unalienable  for  a  longer 
time  than  the  policy  of  the  law  allows,  which  has  not  yet  been 
suffered  to  continue  longer  than  a  life  or  lives  in  being,  and 
twenty-one  years  beyond."  2 


Case  in  Perrin  v.  Blake,  1  W.  Bl. 
672,  is  now  universally  admitted 
to  have  been  wrong.  Again,  his 
views  of  disseisin  by  election  in 
Taylor  d.  Atkyns  v.  Horde,  1  Burr. 
60,  met  a  strong  opposition  from 
the  profession.  Butler's  note  to 
1  Co.  Lit.  3306.  Thus:  "It  is 
hardly  possible  to  conceive  on 
what  principle  of  tenure  the  de- 
cision of  Taylor  v.  Horde  can  be 
supported.  And  on  recent  occasions 
the  courts  have  allowed  that  Lord 
Mansfield's  doctrine  in  that  case 
cannot  be  sustained,"  1  Prest. 
Conv.  60;  "it  is  lamentable  to  see 
how  the  law  [of  seisin  and  disseisin] 
is  sometimes  applied  in  practice 
to  subjects  which  involve  this 
learning;  taking  modern  notions 
of  convenience,  and  not  principle, 
as  the  guide.  The  judgment  in 
Taylor  v.  Horde  has  confounded  the 
principles  of  law,  and  produced  a 
system  of  error."  2  Prest.  Abstr. 
(2d  ed.)  289;  cf.  Challis,  Real  Prop. 
(3d  ed.)  405,  406;  Lightwood,  Pos- 
session of  Land,  43,  54;  so,  of  Lord 


Mansfield's  decision  in  Buckworth 
v.  Thirkell,  3  Bos.  &  P.  652,  note, 
that  an  executory  devise  does  not 
cut  off  curtesy  and  dower,  it  has 
been  said  that  very  few  cases  in 
modern  practice  have  provoked  so 
much  discussion  or  been  the  sub- 
ject of  so  much  animadversion. 
1  Scribner,  Dower  (2d  ed.)  305. 

1  3  Burr.  1635. 

*  3  Bro.  P.  C.  (Toml.  ed.)  275. 

In  the  first  and  second  editions 
of  Fearne  on  Contingent  Remain- 
ders nothing  seems  to  be  said  of 
remainders  to  an  unborn  child  of  an 
unborn  person,  for  in  the  remarks 
on  the  "Nature  of  the  Contingency 
upon  which  a  remainder  may  be 
limited,"  he  does  not  seem  to  have 
had  them  in  mind;  but  in  the  third 
edition,  published  in  1776,  on  page 
391,  in  the  part  treating  of  execu- 
tory devises,  he  says:  "Here,  in- 
deed, it  may  not  be  improper  to 
remark,  once  for  all,  that  any  limi- 
tation in  future,  or  by  way  of  re- 
mainder of  lands  of  inheritance, 
which  in  its  nature  tends  to  a  per- 


ORIGIN  AND   HISTORY. 


171 


§  198.  In  Long  v.  Blackall 1  (1797)  Lord  Kenyon,  C.  J., 
expressed  himself  more  clearly  even  than  Lord  Northington. 
He  said:  "The  rules  respecting  executory  devises  have  con- 
formed to  the  rules  laid  down  in  the  construction  of  legal 
limitations,  and  the  courts  have  said  that  the  estate  shall 
not  be  unalienable  by  executory  devises  for  a  longer  term 
than  is  allowed  by  the  limitations  of  a  common-law  con- 
veyance. In  marriage  settlements  the  estate  may  be  limited 
to  the  first  and  other  sons  of  the  marriage  in  tail,  and  until 
the  person  to  whom  the  last  remainder  is  limited  is  of  age  the 
estate  is  unalienable.  In  conformity  to  that  rule  the  courts 
have  said,  so  far  we  will  allow  executory  devises  to  be  good. 
To  support  this  position  I  could  refer  to  many  decisions:  but 
it  is  sufficient  to  refer  to  the  Duke  of  Norfolk's  Case,  in  which 
all  the  learning  on  this  head  was  gone  into;  and  from  that 


petuity,  even  although  there  be  a 
preceding  vested  freehold,  so  as  to 
take  it  out  of  the  description  of  an 
executory  devise,  is  by  our  courts 
considered  as  void  in  its  creation;" 
and  he  then  goes  on  to  give  the 
case  of  a  remainder  to  an  unborn 
person  followed  by  a  remainder  to 
his  children.  Mr.  Sweet,  in  a  note 
to  1  Jarm.  Wills  (6th  ed.)  369,  note 
(j),  thinks  that  "perpetuity"  here 
probably  refers  to  an  unbarrable 
estate  tail,  but  it  seems  more  likely 
from  the  context  that  Mr.  Fearne  is 
referring  to  the  Rule  against  Per- 
petuities. 

In  2  Gas.  &  Op.  432,  on  Mr. 
Baker's  will,  in  1768,  an  opinion  of 
Mr.  Booth  states,  p.  435:  "It  is  an 
error  to  say  that  an  unborn  son 
cannot  be  made  tenant  for  life, 
.  .  .  but  a  limitation  to  that  un- 
born son's  first  son  is  a  possibility 
upon  a  possibility;  and  that  may 
be,  and  is  by  most  lawyers  thought 
to  be,  what  the  law  will  not  en- 


dure." In  the  opinion  of  Mr. 
Yorke,  on  the  same  will,  p.  440,  it 
is  said:  "By  way  of  executory  de- 
vise, or  springing  use,  the  inherit- 
ance may  be  suspended  from  vest- 
ing during  a  life  or  lives  in  being, 
or  during  the  infancy  of  the  first 
unborn  tenant  in  tail;  but  it  can 
be  suspended  no  longer.  In  like 
manner  a  contingent  remainder 
must  vest  during  the  life  or  imme- 
diately upon  the  death  of  the  dev- 
isee of  the  particular  estate  which 
precedes  it,  such  devisee  being  in 
esse  at  the  time  when  the  will 
speaks;  but  it  cannot  be  made  to 
wait  or  expect  the  vesting  of  an- 
other estate,  prior  in  limitation, 
and  equally  contingent  with  itself. 
The  law  does  not  allow  a  contin- 
gency to  depend  upon  a  contin- 
gency, or  one  possibility  to  be  thus 
raised  upon  another." 

1  7  T.  R.  100.  See  s.  c.  3  Ves. 
486,  489,  and  Thellusson  v.  Wood- 
ford,  11  Ves.  112,  150. 


172  THE   RULE  AGAINST  PERPETUITIES. 

time  to  the  present  every  judge  has  acquiesced  in  that  de- 
cision. It  is  an  established  rule  that  an  executory  devise  is 
good  if  it  must  necessarily  happen  within  a  life  or  lives  in 
being  and  twenty-one  years,  and  the  fraction  of  another  year, 
allowing  for  the  time  of  gestation."  This  statement  of  Lord 
Kenyon,  unsupported  as  it  is  by  the  facts,  seems  to  be  the 
chief  ground  of  the  common  notion  that  the  Rule  against 
Perpetuities  was  borrowed  from  a  rule  forbidding  the  limitation 
of  life  estates  in  remainder  to  successive  generations. 

§  199.  In  Thellusson  v.  Woodford  l  Mr.  Justice  Lawrence 
said:  "The  Court  has  no  criterion  to  judge  of  the  inconven- 
ience arising  from  the  restriction  of  property  by  executory 
devise  except  from  contrasting  it  with  the  restraint  which 
the  common  law  allows  to  be  put  on  the  alienation  of  real 
property."  2  And  Lord  Alvanley,  M.  R.,3  and  Chief  Baron 
Macdonald  4  say  that  Lord  Nottingham,  in  the  Duke  of  Nor- 
folk's Case,  declared  that  the  rule  as  to  the  remoteness  of  ex- 
ecutory devises  was  based  on  the  rule  which  governed  legal 
remainders.6  No  such  meaning  can,  however,  be  properly 
attributed  to  Lord  Nottingham.  What  he  says  is  that  the 
same  rule  must  govern  the  executory  devise  of  a  term  as 
governs  the  executory  devise  of  a  fee:  "Whenever  you  stop 
at  the  limitation  of  a  fee  upon  a  fee,  there  we  will  stop  in  the 
limitation  of  a  term  of  years."  But  what  rule  shall  govern 
the  executory  devise  of  a  fee  is,  he  says,  "not  yet  determined."  6 
The  chronological  examination  of  the  cases  shows  that  the  Rule 
against  Perpetuities  did  not  arise  by  way  of  analogy  to  any 
previous  rule  with  regard  to  remainders,  but  that  as  questions  of 
remoteness  came  up  with  regard  to  different  classes  of  limi- 
tations they  were  considered,  and  the  Rule  against  Perpetuities 
finally  shaped  as  the  rule  which  was  to  govern  all  cases.7 

4  Ves.  227;  11  Ves.  112.  •  3  Ch.  Gas.  36,  49;  2  Swanst. 

4  Ves.  314.  468. 

4  Ves.  331.  7  The  case  of  Whitby  v.  Mitch- 

11  Ves.  135.  ell,  42  Ch.  D.  494;  44  Ch.  D.  85, 

See  Sir  Edward  Sugden's  Ian-      which  held  that  there  is  a  rule  gov- 

guage,  cited  §  287,  post.  erning  the  creation  of  contingent 


ORIGIN  AND  HISTORY.  173 

14.   The  Ride  against  Perpetuities  in  America. 

§  200.  The  Rule  against  Perpetuities,  as  part  of  the  Common 
Law,  has  been  carried  to  all  the  English  colonies  where  the 
principles  of  that  Law  prevail.1  Considering  the  unformed 
condition  of  the  doctrine  of  remoteness  at  the  time  when  the 
American  Colonies  were  planted,  it  would  have  been  quite 
possible  for  it  to  have  developed  there  in  a  different  shape  from 
that  which  it  assumed  in  England.  But  as  a  matter  of  fact 
the  rule  seems,  in  the  absence  of  statute,2  to  be  always  adopted 
throughout  the  United  States  in  its  modern  English  form.3 

§  200  a.  The  practical  importance  of  tracing  the  history  of 
the  Rule  against  Perpetuities  lies  in  the  proof  it  affords  that 
the  Rule  is  not  confined,  as  has  been  sometimes  contended,  to 
interests  arising  under  the  Statutes  of  Uses  and  Wills,  but  that 
it  was  developed  by  cases  on  executory  devises  of  chattels  which 
were  common-law  interests,  and  that  it  should  govern  all 
kinds  of  future  contingent  limitations.4 

remainders,     independent    of    the  Philadelphia   Bar,    has   called   his 

Rule  against  Perpetuities,  and  the  attention  to  the  fact  that  Ashton 

discussion  which  it  has  provoked,  v.  Ashton,  1  Dall.  4  (1760)  in  the 

are  dealt  with,  §§  298  et  seq.,  post.  Supreme   Court   of   Pennsylvania, 

1  See  Yeap  Cheah  Neo  t>.  Ong  seems  to  be  the  first  reported  case 
Cheng  Neo,   L.   R.  6  P.   C.  381.  in  America  in  which  a  question  of 
But  cf.  Cooper  v.  Stuart,  14  Ap.  remoteness  was  involved. 

Cas.  286,  293.  «  See  §§  284-303,  312,  314-316, 

2  The    statutory    modifications      319,  321,  323,  post. 

of  the  Rule  against  Perpetuities  Mr.  Charles  Sweet  in  a  note  to 

are  given  in  App.  B  and  C,  post.  Challis,  Real  Prop.  (3d  ed.)  211, 

They  are  all  in  the  direction  of  admits  that  the  Rule  against  Per- 

greater  stringency.  petuities  is  not  confined  to  in- 

*  See  Becker  v.  Chester,  115  terests  arising  under  the  Statutes 

Wis.  90,  132;  Chilcott  v.  Hart,  23  of  Uses  and  Wills,  but  says  that 

Color.  40.  Cf.  Mayor  of  New  executory  devises  of  terms  were 

York  v.  Stuyvesant,  17  N.  Y.  34,  void  at  common  law.  That  de- 

§  224,  post.  pends  upon  what  is  meant  by  com- 

The  author's  learned  friend,  mon-law  interests;  see  §  296  a,  post. 

Roland  R.  Foulke,  Esq.,  of  the  See  also  §§  297-298,  299-302,  post. 


174  THE   RULE   AGAINST  PERPETUITIES 


CHAPTER  VI. 
THE  RULE  AGAINST  PERPETUITIES  AND  ITS  COROLLARIES. 

§  201.  IN  the  first  edition  the  Rule  against  Perpetuities 
was  given  in  this  form:  — 

NO  INTEREST  SUBJECT  TO  A  CONDITION  PRECEDENT  IS  GOOD, 
UNLESS  THE  CONDITION  MUST  BE  FULFILLED,  IF  AT  ALL,  WITHIN 
TWENTY-ONE  YEARS  AFTER  SOME  LIFE  IN  BEING  AT  THE  CREATION 
OF  THE  INTEREST. 

This  appears  to  be  correct  if  we  assume  that  "condition" 
includes  not  only  all  uncertain  future  acts  and  events  but  also 
all  certain  future  events  with  the  exception  of  the  termination 
of  preceding  estates.1 

If  we  decline  to  make  this  assumption,  and  confine  "con- 
dition" to  uncertain  future  acts  and  events,  then  the  Rule 
against  Perpetuities  will  take  this  shape:  — 

NO  INTEREST  IS  GOOD  UNLESS  IT  MUST  VEST,  IF  AT  ALL, 
NOT  LATER  THAN  TWENTY-ONE  YEARS  AFTER  SOME  LIFE  IN 
BEING  AT  THE  CREATION  OF  THE  INTEREST.2 

1  "Die  Bedingungen,  unter  de-  death,  is  too  remote,  although  the 

nen  ja  auch  er  [Savigny]  nur  die-  event   upon   which   it   depends   is 

jenigen  versteht,  welche  das  Dasein  certain  to  occur.     On  the  distinc- 

eines    Rechtsverhaltnisses    von  ei-  tion   between   vested   and   contin- 

nem  kunftigen  ungewissen  Ereigniss  gent  interests,  see  Chap.  III.,  ante. 

abhangig    machen,    und    die    Be-  See   also   Lawrence's   Estate,    136 

fristungen  sind  in   der   That   nur  Pa.  354,  366,  367. 
Unterarten  eines  Begriffs,  und  zwar  The    author's    learned    friend, 

.  .  .  Unterarten    des    rich  tig    ge-  Professor  A.  M.  Kales,  has  criti- 

fassten    Begriffs    der   Bedingung."  cised  the  latter  definition  on  account 

Adickes,  Die  Bedingungen,  p.  60.  of  the  ambiguous  meaning  of  the 

1  Thus  an  estate  devised  to  A.  word  "  vest."    20  Harv.  Law  Rev. 

and  his  heirs,  to  begin  from  a  day  198;   5  111.  Law   Rev.    387.     The 

fifty    years    after    the    testator's  advantage  of  using  the  term  "vest" 


AND   ITS  COROLLARIES.  175 

1.  Nature  of  Interest. 

§  202.  The  Rule  governs  both  legal  and  equitable  interests, 
and  interests  in  both  realty  and  personalty.1 

§  202  a.  The  Rule  applies  not  only  to  interests  in  par- 
ticular pieces  of  property,  but  also  to  interests  in  change- 
able funds.  Thus  the  interests  of  cestuis  que  trust  may  be 
too  remote,  although  the  trustees  have  full  power  to  change 
investments. 

§  203.  The  Rule  is  not  of  feudal  origin;  it  has  its  support 
in  the  practical  needs  of  modern  times.  Therefore,  although 
it  is  applied  with  great  strictness,  courts  attend  in  applying 
it  to  the  substance  rather  than  to  the  form  of  future  limita- 
tions. Thus  a  future  interest,  if  destructible  at  the  mere 
pleasure  of  the  present  owner  of  the  property,  is  not  regarded 
as  an  interest  at  all,  and  the  Rule  does  not  concern  itself  with 
it.  For  instance,  such  limitations  after  an  estate  tail  as  must 
take  effect,  if  at  all,  not  later  than  the  termination  of  the  estate 
tail,  are  never  too  remote;  the  present  tenant  in  tail  can  destroy 
them  all  at  any  moment  by  docking  the  entail.2 

§  204.  In  like  manner,  rights  of  escheat  in  realty  and  in 
the  nature  of  escheat  in  personalty  are  not  within  the  Rule. 
These  rights  in  modern  times  are  always  in  the  Crown  or 
State,  and  their  existence  in  no  degree  affects  the  value  of  the 
interests  which  are  subject  to  them.3 

is  that  the  word,  as  employed  in  as  is  done  in  §§  205  a,  205  6,  post, 

connection  with  the  Rule  against  than   to    incumber   the   definition 

Perpetuities,  implies   the   assump-  with  it.     See   §§110  a,   118,  ante, 

tion    made    with    regard    to    the  App.  M,  §  970,  post. 
definition    first    above    given    and  l  Lewis,    Perp.    169.     The    in- 

without   which   that   definition   is  terests  subject  to  the  Rule  are  fully 

incomplete.     It   is   true   that   the  discussed  in  Chap.  VIII.,  post.    See 

artificial    character    of    the    term  In  re  Walkerly,  108  Cal.  627,  657. 
"vested"  as  applied  to  a  remainder  *  See  Chap.  XIV.,  post. 

to  an  increasable  class  asks  for  an  *  See    also    note    to    the    next 

explanation,    but   it   seems   better  section. 
to  give  this  explanation  separately, 


176 


THE    RULE   AGAINST   PERPETUITIES 


2.   Vested  Interests  not  subject  to  the  Ride. 

§  205.  A  vested  interest  is  not  subject  to  the  Rule  against 
Perpetuities.1  Thus,  if  land  is  devised  to  A.,  now  a  bachelor, 
for  life,  remainder  to  his  children,  as  tenants  in  common,  for 
life,  remainder  to  B.  in  fee,  B.'s  remainder  is  vested,  and  is 
not  too  remote,  although  it  may  not  come  into  possession  until 
a  period  beyond  the  limits  of  the  Rule  against  Perpetuities. 
Reversions  and  vested  remainders,  and  those  equitable  in- 


1  See  §  101,  ante. 

In  Wood  v.  Drew,  33  Beav.  610, 
the  testator  bequeathed  five  lease- 
hold houses,  the  leases  of  which 
had  about  fifty-four  years  to  run, 
in  trust  for  A.  for  life,  remainder 
for  her  children;  and  on  the  expira- 
tion of  the  lease  of  any  house  he 
directed  his  trustees  to  convey  to 

A.  for  life,  remainder  to  her  chil- 
dren in  fee,  one  or  more  of  his  five 
freehold  houses,  so  that  the  house 
thus  conveyed  should  be  of  equal 
annual  value,  as  near  as  could  be, 
but  not  exceeding,  the  annual  value 
of  the  leasehold  house;  and  in  case 
the  annual  value  of  the  freehold 
house  or  houses  should  exceed  the 
annual  value  of  the  leasehold  house, 
then  the  difference  should  be  paid 
by  A.  or  her  children  to  his  trustees, 
upon  the  trusts  of  the  will.     The 
freehold  houses  were  given  to  the 
trustees  on  trust  to  convey  them, 
or  such  of  them  as  might  be  neces- 
sary, to  A.  and  her  children,  as  pro- 
vided, and  until  such  conveyance 
to  hold  said  houses,  and  all  other 
the  testator's  property,  in  trust  for 

B.  and  his  heirs.    Sir  John  Romilly, 
M.  R.,  held  that  the  interest  of  A. 
and  her  children  in  the  freehold 
houses  was  not  void  for  remote- 
ness; that  if  it  was  bad  for  any 


cause  it  was  bad  for  uncertainty; 
and  he  held  that  it  was  not  bad 
for  uncertainty.  But  the  uncer- 
tainty seems  to  be  this,  —  until 
remote  periods  it  cannot  be  told 
which  freehold  house  or  houses  will 
be  conveyed  in  lieu  of  each  lease- 
hold house,  or  what  the  annual 
value  of  such  houses  will  then  be; 
that  is,  the  uncertainty  arises  from 
the  doubtfulness  of  a  remote  con- 
tingency. The  objection  is  that  of 
remoteness,  and  it  is  submitted 
that  the  gift  was  too  remote.  Ap- 
parently the  annual  value  of  the 
leasehold  house  for  which  a  free- 
hold house  or  houses  of  equal  an- 
nual value  was  to  be  exchanged  was 
the  value  at  the  expiration  of  the 
lease.  Now,  even  assuming  that 
the  five  freehold  houses,  less  the 
amount  by  which  their  value  should 
exceed  the  value  of  the  leasehold 
houses  at  the  expiration  of  the 
leases,  could  be  considered  as  a  dis- 
tinct entity,  and  that  this  entity  if 
ascertained  could  vest  at  once;  yet 
such  entity  could  not  be  ascertained 
until  the  leases  fell  in,  and  must 
consequently  be  contingent  and 
therefore  too  remote.  Cf .  Re  Wood, 
U894]  2  Ch.  310,  316;  In  re  Bewick, 
fl911]  1  Ch.  116. 


AND   ITS   COROLLARIES. 


177 


terests  and  interests  in  personalty  which,  if  they  were  legal 
interests  in  realty,  would  be  reversions  and  vested  remainders, 
are  vested  interests.  Other  future  interests  are  not  vested.1 


1  The  right  of  escheat,  if  an  in- 
terest at  all  within  the  purview  of 
the  Rule  against  Perpetuities,  is  a 
vested  interest.  At  any  rate,  it 
has  no  effect  on  the  tying  up  of 
property.  §§  115,  204,  ante. 

The  right  of  escheat  in  real 
property  is  a  future  right;  but 
when  the  Crown  or  State  takes  per- 
sonal property  upon  the  owner 
dying  intestate  and  without  kin, 
it  takes,  perhaps,  as  ultimus  heres, 
that  is,  as  continuing  in  succession 
the  original  owner's  right.  In  laico 
autem  decedente  ab  intestato,  defi- 
cientibus  consanguineis  et  uxore, 
succedet  fiscus.  Lyndwood,  Prov. 
180.  "Suppose  Lowe  had  been  a 
bastard,  or,  being  legitimate,  had 
died  without  any  next  of  kin,  The 
King,  in  such  case,  would  have 
taken,  as  ullimus  heres,  but  subject 
to  the  debts  of  the  intestate."  Per 
Lord  Mansfield,  Megit  v.  Johnson, 
2  Doug.  542,  548.  Cf .  Dyke  t>.  Wai- 
ford,  5  Moore,  P.  C.  434. 

In  the  famous  case  of  Burgess  v. 
Wheate,  1  Eden,  177,  it  was  held 
that  when  the  owner  of  an  equitable 
fee  dies  without  heirs,  the  trustee 
does  not  hold  the  land  subject  to  a 
trust  for  the  Crown,  and,  in  spite  of 
Lord  Mansfield's  dissenting  opinion, 
and  of  much  criticism  to  which  the 
decision  has  been  subjected,  this 
seems  correct.  When  a  man  dies 
without  natural  heirs,  the  lord 
takes  the  land,  not  in  succession 
as  ultimus  heres,  but  in  the  post  by 
reason  of  tenure,  and  there  is  no 
tenure  of  an  equitable  fee.  The 
legal  title  is  in  the  trustee  subject 


to  a  trust  in  favor  of  the  cestui  que 
trust,  and  this  trust  has  come  to  an 
end,  and  as  it  was  not  held  of  any 
lord,  there  is  no  person  remaining 
having  any  claim  against  the 
trustee. 

The  contention  may  be  made, 
that  although  the  Crown  cannot 
take  as  lord  upon  the  death  of  the 
cestui  que  trust  without  heirs,  there 
should  be  a  resulting  trust  to  the 
settlor  or  testator  and  his  heirs. 
This  question  has  not  been  pre- 
sented in  the  cases,  for  in  them  the 
cestui  que  trust  was  the  settlor  or 
testator,  so  that  not  only  the  cestui 
que  trust,  but  also  the  settlor  or 
testator  had  died  without  heirs, 
and  there  was  no  one  to  whom  a 
trust  could  result.  King's  Attorney 
v.  Sands,  Freem.  Ch.  129.  Bur- 
gess v.  Wheate,  1  W.  Bl.  123. 
Henchman  v.  Attorney-General,  3 
Myl.  &  K.  485.  Taylor  v.  Hay- 
garth,  14  Sim.  8.  Davall  v.  New 
River  Co.,  3  De  G.  &  Sm.  394. 
Beale  t;.  Symonds,  16  Beav.  406. 
Cox  v.  Parker,  22  Beav.  168.  Re 
Harrop's  Estate,  3  Drew.  726. 
Sweeting  v.  Sweeting,  33  L.  J.  Ch. 
211.  Gallard  v.  Hawkins,  27  Ch. 
D.  298.  See  also  Anon.,  5  Edw. 
IV.  7,  pi.  18;  Anon.,  2  And.  197, 
200;  Henchman  v.  A.  G.,  3  Myl.  & 
K.  485.  The  case  of  Keogh  v. 
M'Grath,  5  L.  R.  Ir.  478,  seems  to 
be  the  only  exception.  Cf.  the  St. 
47  &  48  Viet.  c.  71,  §  4,  giving  the 
trust  to  the  Crown;  Re  Wood,  [1896] 
2  Ch.  596;  and  an  article  on  the 
Law  of  Escheat  by  Mr.  Frederic  W. 
Hardman,  4  Law  Quart.  Rev.  318. 


178 


THE   RULE   AGAINST   PERPETUITIES 


§  205  o.   The  preceding  statement  must  be  subjected  to  one 
qualification.    When  a  remainder  is  given  to  a  class,  and  such  re- 


If  land  is  devised  to  trustees  in 
trust  for  A.  for  life,  and  then  in 
trust  for  A.'s  children  in  fee,  and 
A.  never  has  any  children,  there  is 
upon  A.'s  death  a  resulting  trust  to 
the  testator's  heirs;  why  then,  it 
may  be  said,  if  land  is  devised  to 
trustees  in  trust  for  A.  and  his 
heirs  and  A.  dies  without  heirs, 
should  there  not  be  a  resulting 
trust  to  the  testator's  heirs?  It 
may  be  answered  that  in  the  former 
case  the  trust  to  A.'s  children  never 
arises,  while,  in  the  latter,  though 
it  has  come  to  an  end,  it  did  once 
exist;  but  this  does  not  seem  a 
very  solid  distinction.  Again,  as 
we  shall  see  (§  603  i,  post),  when 
land  is  devised  for  a  charitable 
purpose  which  comes  to  an  end, 
and  cannot  be  executed  cy  pres, 
there  is  a  resulting  trust;  and 
this  may  be  said  to  present  the 
same  case  as  a  death  without  heirs. 
Here  again  it  may  be  answered 
there  is  a  distinction  between  a 
charitable  purpose  and  an  indi- 
vidual cestui  que  trust,  but  this  too 
seems  a  rather  unsubstantial  dif- 
ference. On  the  whole,  in  a  juris- 
diction where  the  common  law  still 
prevails,  if  A.  devises  property  in 
trust  for  B.  and  B.  dies  without 
heirs,  it  may  be  worth  considering 
whether  there  should  not  be  a  result- 
ing trust  to  A.'s  heirs.  There  seems 
to  be  nothing  in  the  authorities  (ex- 
cept the  Irish  case)  to  prevent  it. 

For  the  cases  in  those  of  the 
United  States  where  there  is  no 
tenure,  and  where,  therefore,  there 
can  be  no  escheat,  properly  so 
called,  vide  infra. 


If  personal  property  is  held 
in  trust  for  A.  and  A.  dies  intestate 
and  without  widow  or  kin,  the  trust 
continues  in  favor  of  the  Crown.  As 
with  real  estate,  in  all  these  cases 
the  cestui  que  trust  who  has  died  with- 
out kin  has  been  the  same  person 
as  the  settlor  or  devisor,  and  there- 
fore there  could  be  no  question  of 
resulting  trust.  Taylor  v.  Hay- 
garth,  14  Sim.  8.  Powell  v.  Mer- 
rett,  1  Sm.  &  G.  381.  Cradock  v. 
Owen,  2  Sm.  &  G.  241.  Re  Har- 
rop's  Estate,  3  Drew.  726.  Read 
r.  Stedman,  26  Beav.  495.  Re 
Hudson's  Trusts,  52  L.  J.  Ch.  789. 
Dillon  v.  Reilly,  9  L.  R.  Ir.  57. 

Suppose,  however,  that  A.  be- 
queaths personal  property  to  B.  in 
trust  for  C.  and  C.  dies  intestate 
and  without  wife  or  kin,  should  the 
Crown  or  State  take?  This  seems 
to  depend  upon  whether  the  Crown 
or  State  is  really  ultimus  heres  or 
not.  If  the  Crown  or  State  is  really 
ultimus  heres,  that  is,  if  it  takes  in 
succession  to  the  deceased  owner, 
then  it  will  succeed  to  the  trust;  if, 
on  the  other  hand,  ultimus  heres  is 
merely  a  piece  of  rhetoric,  then 
either  the  trustee  should  take  free 
from  trust,  or  there  should  be  a  re- 
sulting trust  to  the  next  of  kin  of 
the  testator  as  explained  above  with 
reference  to  real  estate. 

Where  there  is  no  tenure,  and 
therefore  no  escheat,  the  passing  of 
real  estate  on  the  death  of  the  owner 
without  heirs,  would,  in  the  absence 
of  Statute,  seem  to  rest  upon  the 
same  principles  as  underlie  the  pass- 
ing of  personal  property.  See  Mat- 
thews v.  Ward,  10  G.  &  J.  443;  and 


AND   ITS   COROLLARIES.  179 

mainder  is  vested  in  certain  members  of  the  class  subject  to 
open  and  let  in  other  members,  born  afterwards  or  afterwards 
fulfilling  a  condition,1  the  shares  in  such  remainder  or  interest 
may  be  obnoxious  to  the  Rule  against  Perpetuities,  because 
their  number  and  therefore  their  size  may  not  be  determi- 
nable  until  too  remote  a  period.2  For  instance,  suppose  land 
is  devised  to  A.,  a  bachelor,  for  life,  remainder  to  his  eldest  son 
for  life,  remainder  to  those  children  of  B.  who  reach  twenty- 
five.  At  the  testator's  death  B.  is  living  and  one  of  his  chil- 
dren, C.,  has  reached  twenty-five.  The  interest  of  C.  is  said  to 
be  vested,  and  yet  the  devise  to  B.'s  children  is  invalid  as  too 
remote;  for,  although  the  minimum  size  of  each  child's  share  will 
be  fixed  at  the  death  of  B.,  the  maximum  may  not  be  determined 
until  twenty-five  years  after.3  This  qualification  is  rendered 
necessary  by  the  artificial  character  of  the  rule  which  declares 
that  a  member  of  a  class  may  have  a  vested  interest  in  property 
given  to  the  class,  although  the  number  of  the  members  in  the 
class  is  uncertain.  The  fact  is  that,  though  it  is  certain  that 
each  member  of  the  class  will  get  something,  the  amount  which 
he  will  get  is  dependent  upon  the  contingency  of  the  size  of 
the  class.  Though  the  interest  is  called  vested,  it  is  in  truth 
contingent.4 

§  205  b.  A  dictum  in  the  case  of  Belfield  v.  Booth  5  seems  to 
have  overlooked  this  qualification.  The  Court  in  that  case 
held  that  the  period  at  the  end  of  which  distribution  was  to 

cf.  Johnston  v.  Spicer,  107  N.  Y.  J  See  §§  381-385,  post. 

185;  and  Commonwealth  v.  Naile,  4  §  110  a,  ante.     1   Jarm.   Wills 

88  Pa.  429.  (6th   ed.)   329.     30   Cyc.   Law  & 

Where  there  is  an  escheat,  or  the  Proc.  1486.     See  Re  Gage,   [1898] 

extinguishment  of  a  trust,  or  a  sue-  1   Ch.  498;    and    §    972,   note    7, 

cession  in  interest,  there  is  no  room  post. 

for   the   application   of    the   Rule  As  to  the  cases  in  which  the 

against  Perpetuities;  as  to  its  appli-  right  of  possession  of  a  vested  in- 

cation  to  cases  of  resulting  trust,  terest  is  allowed  to  be  postponed, 

see  §  327  a,  post.  and  the  application  to  them  of  the 

1  See  §§  110, 110  a,  ante.  Rule  against  Perpetuities,  see  Chap. 

J  See  Chap.  X.,  Limitations    to  IV.,  ante. 
Classes,  post.  6  63  Conn.  299,  306. 


180  THE   RULE   AGAINST  PERPETUITIES 

take  place  would  not  extend  beyond  the  limit  fixed  by  the 
Rule  against  Perpetuities,1  but  they  said:  "Even  if  the 
period  were  one  that  might  endure  to  a  time  beyond  twenty- 
one  years  after  the  decease  of  the  testator,  the  estate  having 
vested  at  his  decease  in  a  definite  class  cannot  be  divested  by 
any  change  in  the  membership  of  that  class.  It  remains  the 
same  class,  though  composed  from  time  to  time  of  different 
individuals."  It  is  respectfully  submitted  that  this  dictum  is 
incorrect. 

§  206.  An  estate  which,  though  now  a  contingent  remainder 
or  executory  devise,  must,  if  it  is  to  take  effect  at  all,  become 
vested  within  twenty-one  years  after  lives  in  being,  is  good. 
Thus  upon  a  devise  to  A.  in  fee,  but  if  she  dies  unmarried  then 
to  B.  and  the  heirs  of  her  body,  and  on  failure  of  them  to  C.  and 
the  heirs  of  her  body,  C.'s  estate,  though  at  the  death  of  the 
testator  an  executory  devise,  would  be  turned  into  a  vested 
remainder  by  the  death  of  A.  unmarried,  and  is  therefore  not  too 
remote.2  But  the  estate  must  vest  within  the  required  limits; 
it  is  not  enough  that  it  will  vest  during  or  at  the  end  of  a  life 
interest  which  is  itself  good  as  beginning  within  them.3  So  there 
can  be  successive  gifts  for  life  to  persons  unborn,  provided 
their  estates  must  vest  within  the  required  limits.4 

1  See  §  214  6,  post.  Goodier  v.  Johnson,  18  Ch.  D.  441; 

8  Craig  v.  Stacey,  Ir.  Term  R.  Goodier  v.  Edmunds,  [1893]  3  Ch. 

249.     See  Re  Roberts,  19  Ch.  D.  455;  §§5096,  509  d,  post. 
520.     If  property  is  held  in  trust,  *  Brudenell    v.   Elwes,    1    East, 

on  the  termination  of  twenty-one  442;  Cadell  v.  Palmer,  1  Cl.  &  F. 

years  after  a  life  in  being,  to  trans-  372;  7  Bl.  N.  s.  202.    The  dictum  of 

fer  and  pay  over  the  same,  the  gift  Lord  Tenterden,  C.  J.,  in  Doe  d. 

over  is  not  too  remote,  although  it  Garrod  v.  Garrod,  2  B.  &  Ad.  87, 

may  take  some  time  for  the  trustees  96,  to  the  contrary  is  not  law.    See 

to  make  the  actual  transfer  and  pay-  Marsden,  Perp.  180.    On  the  ques- 

ment.  Bates  w.Spooner,  75  Conn.  501.  tion  whether  a  remainder  for  life 

1  Hodson  v.  Ball,  14  Sim.  558,  to  the  child  of  an  unborn  person, 

574.    Lett  v.  Randall,  3  Sm.  &  G.  after  a  remainder  for  life  to  such 

83.    Buchanan  v.  Harrison,  1  J.  &  person,  is  good,  if  so  limited  that 

H.  662,  665.    D'Abbadie  v.  Bizoin,  it  must  take  effect  within  lives  in 

Ir.  R.  5   Eq.  205.    See    Re  Mer-  being   and   twenty-one   years,   see 

rick's   Trusts,   L.   R.    1   Eq.   551;  §§  284  et  seq.,  post. 


AND  ITS  COROLLARIES.  181 

§  207.  In  Ashley  v.  Ashley 1  an  estate  was  given  to  A.  for 
life,  remainder  to  A.'s  children  as  tenants  in  common  for 
life,  and  for  want  of  such  issue  remainder  over.  It  was  held 
that  cross-remainders  for  life  to  the  children  of  A.  should  be 
implied.  Malms,  V.  C.,  in  Stuart  v.  Cockerell,2  and  Mr.  Mars- 
den,3  find  fault  with  this  decision  on  the  ground  that  such  cross- 
remainders  would  be  too  remote.  But  the  criticism  seems  not 
just.  The  cross-remainders  all  vested  not  later  than  the  death 
of  A.4  The  case  is  unlike  a  gift  to  the  children  of  A.  as  tenants 
in  common  for  life,  remainder  to  the  survivor  in  fee.  There 
the  remainder  is  contingent  until  all  the  tenants  but  one  are 
dead.5 

§  207  a.  In  Cooke  v.  Bowler 6  property  was  given  in  trust 
for  the  benefit  of  the  testator's  brother,  A.,  and  his  sisters, 
B.,  C.,  and  D.,  for  life,  then  for  their  children  for  life,  "with 
benefit  of  survivorship,"  and  on  the  death  of  the  survivor  then 
to  be  distributed  in  accordance  with  the  Statute  of  Distribu- 
tions. Lord  Langdale,  M.  R.,  is  said  to  have  held  that  the 
direction  for  distribution  was  void  for  remoteness,  and  that 
the  property  went,  as  on  intestacy,  to  those  who  were  the 
testator's  next  to  kin  at  his  death.  The  opinion  is  very  brief. 
This  case  has  been  sometimes  referred  to  as  an  authority  that  a 
vested  interest  is  too  remote  if  preceded  by  a  life  estate  to  an 
unborn  person.  But  if  the  distribution  to  the  next  of  kin  was 
construed  to  mean  a  distribution  to  those  who  should  be  the 
next  of  kin  at  the  termination  of  the  children's  life  estates,  the 
persons  to  take  would  remain  uncertain  until  such  termination, 
and  the  gift  to  them  would  be  contingent,  and  of  course  too 
remote;  while  if  the  gift  was  vested,  it  vested  in  those  who  were 
next  of  kin  at  the  testator's  death,  and  they  were  the  persons 
who  did  in  fact  take.7 

1  6  Sim.  358.  mainder  is  to  joint  tenants  for  life, 

*  L.  R.  7  Eq.  363,  370.  see  §  232  a,  post. 
1  Perp.  177  et  seq.  •  2  Keen,  54. 

4  See  1  Jarm.  Wills  (6th  ed.),  T  See   1  Jarm.  Wills  (6th   ed.) 

349.  349;    Lewis,   Perp.    218  (a).     Mr. 

'  On    the    case   where   the   re-  Marsden  suggests,  Perp.  179,  180, 


182  THE  RULE  AGAINST  PERPETUITIES 

§  208.  In  Donohue  v.  McNichol l  after  the  devise  of  a  life 
estate  to  an  unborn  person,  there  was  a  gift  over  to  the  tes- 
tator's heirs.  The  Supreme  Court  of  Pennsylvania  said  that 
even  if  the  gift  over  was  to  those  persons  who  were  the  tes- 
tator's heirs  at  his  decease,  it  would  be  too  remote,  and  ques- 
tioned 1  Jarm.  Wills,  240.2  As  the  same  persons  took  whether 
the  gift  over  so  construed  was  valid  or  not,  the  remarks  were 
not  called  for.  They  seem  to  have  been  clearly  erroneous.3 

§  209.  If  a  remainder  is  vested,  that  is,  if  it  is  ready  to 
take  effect  whenever  and  however  the  particular  estate  deter- 
mines, it  is  immaterial  that  the  particular  estate  is  determi- 
nable  by  a  contingency  which  may  fall  beyond  a  life  or  lives 
in  being.  For  instance,  if  an  estate  is  given  to  the  unborn 
child  of  A.  until  he  dies  or  changes  his  name,  and  then  to  B. 
and  his  heirs,  B.  has  a  vested  remainder,  for  he  will  take  the 
estate  whether  the  child  dies  or  changes  his  name,  although 
the  contingent  determination  of  the  estate  before  the  child's 
death  depends  upon  an  event  which  may  not  take  place  until 
beyond  the  limits  prescribed  by  the  Rule  against  Perpetuities.4 
And  it  makes  no  difference  whether  the  provision  for  termina- 
tion be  expressed  in  the  form  of  a  condition  or  a  limitation.5 
So  a  remainder  to  a  person  ascertained  and  his  heirs  after  a 
term  for  years,  however  long  the  term,  or  whatever  be  the  con- 
ditions to  which  the  term  is  subject,  is  not  too  remote.6 

that  perhaps  Cooke  v.  Bowler  is  to  354,  367;  In  re  Stevens,  [1912]  Viet. 

be  explained  on  the  ground  that  L.R.  194;App.  M,  §§970 etseq., post. 

the  ultimate  gift  was  bad  as  com-  6  See  Re  Roberts,  19  Ch.  D.  520; 

ing  after  cross  limitations  for  life  Marsden,  Perp.  71,  176,  177;  Lewis, 

to  nephews  and  nieces  which  were  Perp.  173. 

themselves  too  remote.    As  to  this,  8  Gore  v.  Gore,  2  P.  Wms.  28. 

see  §§  251  et  seq.,  post.  Wood    v.    Drew,    33    Beav.    610. 

1  61  Pa.  73.  Switzer  v.  Rochford,  [1906]  1  I.  R. 

1  6th  ed.  349.  399.    Fearne,  C.  R.  431.    Marsden, 

8  See   Foulke,    Treatise,    §  348;  Perp.  65.    Challis,  Real  Prop.  (3d 

§  353  a,  post.  ed.)  186.    See  Redington  t;.  Browne, 

4  Wainwright  v.  Miller,  [1897]  2  32  L.  R.  Ir.  347,  356;  Todhunter 

Ch.  255.    See  Boughton  v.  James,  1  v.  D.  M.  I.  &  M.  R.  Co.,  58  Iowa, 

Coll.  26,  46;  Re  Gage,  [1898]  1  Ch.  205;  Toms  v.  Williams,  41  Mich. 

498;   Lawrence's   Estate,    136   Pa.  552,  572;  Rhodes's  Estate,  147  Pa. 


AND   ITS   COROLLARIES.  183 

§  209  a.  In  Morris  v.  Fisher  *  the  Court  of  Common  Pleas 
of  Philadelphia  held  that  a  vested  remainder  after  a  term  for 
ninety-nine  years  was  too  remote,  and  in  ejectment  by  the 
heir  of  the  remainder-man  judgment  was  given  for  the  de- 
fendant. The  case  was  carried  to  the  Supreme  Court  of  Pennsyl- 
vania, and  there  the  parties  joined  in  an  agreement  requesting 
the  Court  to  reverse  the  judgment  below,  which  was  done.2 
This  looks  as  if  the  learned  counsel  for  the  defendant  had  little 
hopes  of  holding  his  judgment.  It  does  not  seem  possible  that 
he  could; 3  or  that  a  like  decision  of  the  United  States  Circuit 
Court  for  the  Western  District  of  Arkansas  can  be  sustained.4 

§  210.  There  can  be  no  remainder  after  a  fee  simple;  a 
remainder  after  a  fee  tail  is  destructible;  a  remainder  after 
life  estates  must  vest  in  possession  not  later  than  the  end  of 
life  estates  which  begin  within  the  limits  of  the  Rule  against 
Perpetuities;  but  an  estate  subject  to  a  term  for  years  may 
not  come  into  possession  for  centuries.  Here  there  seems 
an  opportunity  for  abuse.  If  an  estate  is  devised  to  A.  and 
his  heirs,  but  if  he  or  they  ever  change  their  family  name, 
then  to  B.  and  his  heirs,  the  gift  to  B.  is  an  executory  devise, 
and  is  too  remote.  But  suppose  an  estate  is  devised  to  A.  for 
a  thousand  years  unless  A.  or  his  heirs  sooner  change  their 
name,  and,  subject  to  the  term,  the  land  is  devised  to  B.,  here  B. 
has  an  interest  theoretically  vested,  but  practically  contingent 
upon  A.  or  his  heirs  changing  their  name,  —  an  event  which 
may  be  very  remote.  The  trouble  arises  from  terms  being 
sometimes  of  extravagant  length.  Some  legislation,  like  that  of 
Alabama,5  which  provides  that  "no  leasehold  estate  can  be 
created  for  a  longer  term  than  twenty  years,"  seems  judicious.6 

227;  Sioux  City  Terminal  R.  R.  Co.  6  Civil  Code  (1907),  §  3418. 

v.  Trust  Co.  of  N.  America,  82  Fed.  «  See  Roe  v.  Galliers,  2  T.  R. 

Rep.  124.  133,  140;  3  Prest.  Abs.  (2d  ed.)  154, 

1  8  Pa.  Dist.  Rep.  161.  155;  4  Property  Lawyer,  297,  298; 

1  46  Atl.  Rep.  1102.  Gray,  Restraints  on  Alienation 

1  See  Foulke,  Treatise,  §363.  (2d  ed.),  §  103;  App.  M,  §§  970 

*  Hanley  v.  Kansas  Coal  Co.,  el  seq.,  post.  Statutes  limiting  the 

110  Fed.  Rep.  62.  duration  of  terms  for  years  have 


184  THE   RULE  AGAINST  PERPETUITIES 

3.   Nature  of  Contingency. 

§  211.  The  contingencies  on  which  future  interests  may  be 
conditioned  are  infinite  in  number.  The  one  most  in  contro- 
versy has  been  the  failure  of  issue.  If  a  gift  is  made  upon  a 
failure  of  A.'s  issue,  the  point  to  be  determined  is  whether  an 
indefinite  failure  of  issue  or  a  failure  at  A.'s  death  is  intended. 
If  the  former,  then  it  is  meant  that  the  gift  over  shall  take 
effect  whenever  A.'s  issue  come  to  an  end,  even  in  the  re- 
motest generation.  If  the  latter,  then  it  is  meant  that  the 
gift  over  shall  take  effect  only  in  case  A.  has  no  children  living 
at  his  death.  For  instance,  suppose  there  is  a  gift  to  A.  and 
his  heirs  with  a  gift  over  upon  the  death  of  A.  without  issue, 
and  A.  dies  leaving  a  son  B.  surviving  him,  but  B.  dies  un- 
married, here,  if  an  indefinite  failure  of  issue  is  intended,  the 
gift  over  is  meant  to  take  effect,  for  A.'s  issue  have  become  ex- 
tinct; but  if  a  definite  failure  of  issue  is  intended,  then  the  gift 
over  is  not  meant  to  take  effect,  for  A.  left  issue  him  surviving. 

§  212.  In  the  case  supposed,  if  the  gift  is  of  real  estate  the 
decision  of  the  question  whether  a  failure  of  issue  is  definite  or 
indefinite  is  immaterial,  so  far  as  remoteness  is  concerned;  for 
if  an  indefinite  failure  of  issue  is  intended,  then  the  first  taker 
has  an  estate  tail,  to  remainders  on  which  the  Rule  against 
Perpetuities  does  not  apply;  and  if  a  definite  failure  is  in- 
tended, then  the  gift  over  takes  effect  on  the  death  of  the  first 
taker.1  In  the  case  of  personal  estate  the  question  of  indefi- 
niteness  or  definiteness  of  failure  of  issue  is  vital  on  the  ques- 
tion of  remoteness;  for  if  the  failure  of  issue  be  indefinite,  the 
gift  over  is  too  remote,  while  if  it  is  definite,  the  gift  over  is 
of  course  good.2 

been  passed  in  other  States;  e.  g.  A.,  then  a  gift  over  of  real  estate 

California,    Civil    Code,    §§    717,  on  failure  of  A.'s  issue  will,  on  the 

718;  Nevada,  Comp.  Law  (1900),  question  of  remoteness,  follow  the 

§  2717,  Gen.  Sts.  (ed.  1885),  §  2647;  analogy  of  limitations  of  personalty. 
North  Dakota,  Rev.  Codes  (1905),  *  A  definite  failure  of  a  man's 

§  4746.  issue  is  not  necessarily  a  failure  at 

1  If  there  is  no  preceding  gift  to  his  death;  a  failure  in  any  partio 


AND   ITS   COROLLARIES.  185 

§213.  "Dying  without  issue"  and  equivalent  expressions 
are  presumed  at  the  common  law  to  mean  an  indefinite  failure 
of  issue,  but  this  presumption  can  be  overthrown  by  the  con- 
text; and  by  statute  in  England  1  and  in  many  of  the  United 
States  the  presumption  is,  in  devises  and  bequests,  reversed. 
The  number  of  cases  is  enormous.  Mr.  Lewis  has  devoted 
almost  a  third  of  his  treatise  to  their  consideration;  but,  with 
all  respect  for  his  authority,  the  discussion,  however  learned 
and  valuable,  seems  out  of  place.  There  is  no  doubt  how  the 
Rule  against  Perpetuities  applies  either  to  gifts  on  indefinite 
or  on  definite  failure  of  issue.  Which  is  meant  is  a  mere  question 
of  construction,  and  its  discussion  belongs  to  a  treatise  on  the 
construction  of  wills,  rather  than  to  one  on  the  Rule  against 
Perpetuities.2 

4.   The  Contingency  MUST  happen,  if  at  all,  within  the 
Required  Limits. 

§  214.  It  is  not  enough  that  a  contingent  event  may  happen, 
or  even  that  it  will  probably  happen,  within  the  limits  of  the 
Rule  against  Perpetuities;  if  it  can  possibly  happen  beyond 
those  limits,  an  interest  conditioned  on  it  is  too  remote.3  A 
good  illustration  is  furnished  by  a  mistake  which  has  been  often 
made.  Property  is  devised  to  A.  for  life,  remainder  to  his  widow 
for  life,  remainder  over  on  the  death  of  the  widow.  Here  the 
remainder  over  on  the  death  of  the  widow,  if  contingent  until 

ular  generation  or  generations  of  §§97-171;  2  Jarm.  Wills  (6th  ed.) 

his  descendants  is  equally  definite.  p.  1958;  Hawkins,  Wills,  (2d  ed.) 

Whether  such  gift  would  be  too  c.  17,  254-264;  Theob.  Wills  (5th 

remote  can  easily  be  determined.  ed.),  c.  42,  pp.  619-625;  Tud.  L. 

Practically    the    question    always  C.  in  Real  Prop.   (4th  ed.)   371; 

arises  between  a  definite  failure  at  Marsden,    Perp.    c.    10,    pp.    182- 

his  own  death,  and  an  indefinite  205.     See  §  632,  post. 
failure  in  any  generation.  *  See  Re  Wood,  [1894]  2  Ch.  310; 

1  1  Viet.  c.  26,  §  29.  [1894]  3  Ch.  381;  Re  Stratheden, 

1  The   learned   reader  will  find  [1894]  3  Ch.  265;  Thomas  v.  Thomas 

the  cases  collected  and  discussed  (C.  A.),  87  L.  T.  R.  58.     In  re 

in  Lewis,  Perp.  c.  15,  pp.  174-407;  Bewick,  [1911]  1  Ch.  116.    Cf.  Gex 

Suppl.    pp.    68-%;    Prior,    Lim.  v.  Dill,  86  Miss.  10. 


186  THE   RULE   AGAINST  PERPETUITIES 

that  event,  is  bad,  because  A.  may  many  a  woman  who  was  not 
born  at  the  testator's  death;  and  the  result  is  not  affected  by  the 
fact  that  A.  is  very  old  at  the  testator's  death.1 

§  214  a.  In  Brandenburgh  v.  Thorndike 2  a  testator  gave 
the  residue  of  his  property  to  trustees,  in  trust  from  the  income 
to  pay  to  his  wife  a  certain  sum  annually,  to  add  the  balance 
to  the  capital,  and  after  the  death  of  the  wife  to  add  the  whole 
income  to  the  capital,  and  directed  that  "at  the  expiration  of 
three  years  from  the  death  of  my  wife,  or  at  such  time,  whether 
earlier  or  later,  as  may,  in  the  discretion  of  the  trustees,  be 
found  expedient  and  practicable  for  the  final  settlement  and 
distribution  of  my  estate,  the  trustees  shall  pay,  convey,  and 
transfer  said  fund  in  equal  shares,  viz.  one  share  to  each  of 
my  following  nieces  and  nephew,  then  surviving"  (naming 
them)  "and  one  share  to  the  issue  of  each  of  said  nieces  and 
nephew  then  deceased  leaving  issue  then  surviving."  The  court 
held  that  the  gift  to  the  nieces  and  nephew  and  their  issue  was 
not  too  remote.  They  said:  "Taking  the  view  most  favorable 
to  the  plaintiffs,  the  discretion  of  the  trustees  to  delay  the 
payment  after  the  expiration  of  the  three  years  is  limited  to 
such  time  as  is  reasonably  necessary  to  settle  the  estate.  They 
could  not  delay  longer  without  violating  their  duty,  and  in  case 
of  unreasonable  delay  they  would  be  compelled  by  a  court  of 
equity  to  make  the  payment  and  transfer.  In  no  contingency 
could  it  be  necessary  or  reasonable  to  delay  the  settlement  and 
distribution  of  the  estate  for  twenty-one  years  after  the  death 
of  the  widow." 

§  214  b.  In  Belfield  v.  Booth  3  the  will  of  a  testator,  who 
died  in  1890,  after  making  certain  bequests  and  charges,  con- 
tinued thus:  "After  the  above  bequests  have  been  complied 

1  Hodson  v.  Ball,  14  Sim.  558,  551;  Goodier  v.  Johnson,  18  Ch.  D. 

574.     Lett  t>.  Randall,  3  Sm.  &  G.  441;  Stephens  v.   Evans,   30  Ind. 

83.     Buchanan  v.  Harrison,  1  J.  &  39;  Klingman  v.  Gilbert,  90  Kans. 

H.  662.    In  re  Harvey,  39  Ch.  D.  545;  Marsden,  Perp.  103,  175. 
289.    Sears  v.  Russell,  8  Gray,  86.  *  139  Mass.  102. 

Stone   v.    Nicholson,    27    Grat.    1.  *  63  Conn.  299. 

See  Merrick's  Trusts,  L.  R.  1  Eq. 


AND  ITS  COROLLARIES.  187 

with  and  the  executor  has  settled  with  the  judge  of  probate, 
my  will  is  that  the  remainder  of  my  estate  be  paid  over  to  the 
trustee  hereinafter  named.  I  hereby  appoint"  P.  "trustee  of 
my  estate  for  the  following  fourteen  years  from  the  time  he 
receives  said  funds  from  the  executor."  The  testator  pro- 
ceeded to  direct  that  the  trustee  should  make  certain  annual 
payments  during  the  fourteen  years,  and  at  the  expiration  of 
that  period  should  cause  the  remainder  to  be  divided  among 
a  class  to  be  then  determined.  P.  was  also  named  as  exec- 
utor. P.  had  been  removed  by  the  Court  of  Probate  from  his 
office  as  executor,  but  had  appealed.  He  had  not  settled  his 
administration  account,  and  the  date  of  the  final  settlement 
of  the  estate  (which  was  mainly  personalty)  was  uncertain  on 
account  of  the  pendency  of  the  appeal.  The  Supreme  Court  of 
Errors  of  Connecticut  held  that  the  fourteen  years  began  to 
run  from  the  date  of  the  settlement  of  the  administration 
account,  and  they  held  that  the  period  for  final  distribution 
was  not  too  remote.1  The  Court  said  that  the  settlement  of 
the  estate  of  a  deceased  person  in  Connecticut  was  ordinarily 
completed  within  one  or  two  years;  that  the  executor  was 
bound  to  offer  the  will  for  probate  within  thirty  days  from 
the  testator's  death;  that  "the  form  of  probate  bond,  long 
prescribed  by  statute,  obliged  the  executor  to  render  his  final 
account  at  a  day  set  by  the  court,  generally  within  a  year 
from  the  grant  of  letters  testamentary;"  2  that  twelve  months 
was  the  longest  period  that  could  be  fixed  by  the  probate 
court  for  the  presentation  of  claims,  and  suits  upon  rejected 
claims  must  be  brought  promptly  if  at  all;  that  if  an  exec- 
utor neglected  to  settle  an  estate  within  a  reasonable  time,  the 
court  of  probate  could  remove  him  on  summary  proceedings; 
that  "the  testator  has  a  right  to  rely  on  the  courts  of  his 

1  As  to  a  dictum  in  the  opinion,  2  The    statute    in  force  at  the 

seemingly  erroneous,  on  a  vested  date  of  the  will  and  subsequent  pro- 
gift  to  a  class  which  can  be  in-  ceedings  did  not,  however,  pre- 
creased  and  diminished,  see  §  205  6,  scribe  the  form  of  the  executor's 
ante.  bond.  Conn.  Gen.  Sts.  (1888), 

§548. 


188  THE   RULE   AGAINST  PERPETUITIES 

State  to  enforce  the  proper  settlement  of  his  estate,  both  as  to 
the  manner  and  the  time  of  the  proceeding;"  that  the  executor 
"has  been  removed  for  cause,  and  within  two  months  thereafter 
the  construction  of  his  [the  testator's]  will  has  been  brought  be- 
fore the  court  of  last  resort  for  final  determination;" 1  that  the 
pendency  of  the  executor's  appeal  from  the  decree  of  removal, 
although  it  rendered  the  time  of  the  final  settlement  of  the 
estate  uncertain,  could  not  render  it  remote,  since  such  an  appeal 
takes  precedence  of  ordinary  actions;  that  the  Court  was  not 
to  presume  that  the  settlement  of  the  estate  will  or  can  be 
delayed  beyond  a  reasonable  time;  and  that  its  opinion 
was  that  the  trust  would  "commence  at  the  time  when  the 
accounts  of  the  executor  or  administrator  of  his  estate  are, 
or  should  be,  settled  in  the  due  course  of  administration,  and 
that  this  time  cannot  be  delayed  so  long  as  seven  years  from 
his  decease;"  that  it  was  "not  necessary  that  such  settlement 
should  be  the  final  accounting  of  the  executor  or  adminis- 
trator in  the  court  of  probate;"  and  that  some  of  the  persons  to 
whom  annual  payments  were  to  be  made  were  over  eighty. 

§  214  c.  The  cases  of  Branderiburgh  v.  Thorndike  and  Bel- 
field  v.  Booth  call  for  serious  consideration.  The  decision 
hi  the  former  case  seems  correct.  A  fair  construction  of 
the  will  was  that  the  testator  by  the  expression,  "at  the 
expiration  of  three  years  from  the  death  of  my  wife,  or  at  such 
time,  whether  earlier  or  later,  as  may,  in  the  discretion  of  the 
trustees,  be  found  expedient  and  practicable,"  meant  "at  such 
time,  about  three  years,  as  the  trustees  may  determine,"  and 
certainly  a  period  exceeding  twenty-one  years  is  not  "about 
three  years."  The  decision  in  Belfield  v.  Booth  is  harder  to  sup- 
port. That  case  rests  upon  the  proposition  that  a  period  of 
fourteen  years  to  begin  after  "the  executor  has  settled  with 
the  judge  of  probate,"  must  begin  within  seven  years  from  the 
testator's  death.  Now,  in  the  first  place,  the  substitution  of  the 
time  when  the  executor  should  have  settled  his  accounts  for 

1  The  case  was  argued  before  June,  1893,  and  decided  in  Sep- 
the  Supreme  Court  of  Errors  in  tember,  1893. 


AND    ITS   COROLLARIES.  189 

the  time  when  he  has  in  fact  settled  them,  seems  a  straining 
of  the  words  of  the  will.  But  further  to  say  that  an  executor 
ought  necessarily,  as  matter  of  law  under  all  circumstances,  to 
settle  his  accounts  within  seven  years  after  the  testator's 
death  seems  to  be  to  lay  down  doctrine  which  it  is  difficult 
to  maintain.  Suppose  a  man  dies  testate  leaving  a  large  prop- 
erty but  much  involved;  suppose  some  of  his  relations  are  dis- 
satisfied with  his  will;  suppose  plan  after  plan  of  compromise  is 
tried  in  vain;  suppose  the  will  is  offered  for  proof,  an  appeal 
taken  to  a  jury  from  the  decision  in  the  probate  court,  an 
appeal  to  the  Supreme  Court  on  a  question  of  the  admissibility 
of  evidence,  and  the  appeal  sustained;  a  new  trial  before  a  jury; 
a  new  appeal  again  sustained;  the  same  process  repeated  a  third 
time;  suppose  the  will  finally  allowed,  but  that  most  of  the  as- 
sets are  claimed  by  a  third  person,  and  the  executor  is  obliged 
to  prosecute  or  defend  lawsuits  in  order  to  hold  the  assets 
and  that  these  suits  have  the  common  incidents  of  appeals 
and  new  trials;  suppose  that  the  will  is  obscure,  and  a  bill 
in  equity  has  to  be  brought  to  construe  it.  None  of  these 
suppositions  are  impossible,  few  are  improbable.  Many 
other  suppositions,  neither  impossible  nor  improbable,  might 
be  imagined.  Between  them  it  is  certainly  possible  that  the 
executor  may  not  be  bound  in  law  to  settle  his  accounts  till 
more  than  seven  years  have  elapsed  since  the  death  of  the 
testator.  Or  if  such  delay  is  absolutely  impossible  in  the 
Saturnia  regna  of  Connecticut,  the  case  can  hardly  be  an 
authority  in  jurisdictions  where  justice  is  not  so  speedy. 

§  214  d.  The  case  of  Belfield  v.  Booth  is  an  interesting  il- 
lustration how  the  introduction  or  rejection  of  a  legal  doctrine 
may  bring  about  unexpected  consequences.  Connecticut  re- 
pudiated the  doctrine  of  cy  pres;  then  came  the  case  of  Coit  v. 
Comstock,1  easily  to  be  decided  under  the  doctrine  of  cy  pres, 
but  for  which  the  Court,  to  preserve  the  form  of  consistency, 
had  to  invent  several  novelties,  among  others  this  implica- 
tion of  "reasonable  time,"  to  avoid  the  objection  of  remote- 
i  51  Conn.  352;  see  §§  621-624,  post. 


190  THE   RULE  AGAINST  PERPETUITIES 

ness;  and  from  Coit  v.  Comstock,  this  idea  has  travelled  to 
Belfield  v.  Booth,  and  is  there  no  longer  confined  to  charities.1 

§  214  e.  To  avoid  any  doubt  as  to  the  points  raised  in 
these  cases,  the  periods  within  which  powers  given  by  will 
to  executors  or  others,  e.  g.  to  sell  real  estate,  are  to  be  con- 
fined, should  be  made  to  run,  not  from  the  date  of  probate,  but 
from  the  time  of  the  testator's  death. 

§  215.  In  one  class  of  cases,  from  the  difficulty  and  deli- 
cacy of  determining  the  question  involved,  the  occurrence  of 
a  contingent  event  beyond  the  required  limits  will  be  con- 
sidered as  possible  although  it  is  physically  impossible.  If 
a  devise  is  made  to  those  of  a  woman's  children  who  reach 
twenty-five,  the  gift  is  too  remote,  although  the  woman  be  of 
such  an  age  that  it  is  certain  she  can  have  no  more  children, 
and  therefore  the  event  must  occur,  if  at  all,  in  the  lives  of 
persons  in  being,  viz.,  of  her  children  alive  at  the  testator's 
death.  In  other  words,  for  the  purpose  of  determining  ques- 
tions of  remoteness,  men  and  women  are  deemed  capable  of 
having  issue  as  long  as  they  live.  This  was  held  by  Sir  Lloyd 
Kenyon  in  Jee  v.  Audley,2  and  his  decision  has  never  been 
questioned. 

§  215  a.  In  Sayer's  Trusts,3  Malins,  V.  C.,  followed  Jee 
v.  Audley;  but  in  Cooper  v.  Laroche,*  apparently  forgetting 
both  Jee  v.  Audley  and  his  own  previous  decision  in  Sayer's 
Trusts,  he  held  that  a  future  gift  to  the  children  of  a  woman 
sixty  years  old  must  be  a  gift  to  persons  now  in  esse.  The 

1  See  also  §§  617,  618,  post.    On  Rev.  112,  this  decision  is  criticised, 

limiting  the  exercise  of  powers  to  and   with   reason,   on   the  ground 

a  reasonable  period,  see  §  478,  post.  that  the  words  cited  merely  specify 

Cf.  also  Lennig's  Est.,  31  W.  N.  C.  the  date  for  the  ending  and  not  for 

(Pa.)  234.  the  beginning  of  the   term.     See 

In  Johnson  v.  Preston,  226  111.  Armstrong  v.  Barber,  239  111.  389; 

447,    a  devise   to   an  executor  to  Mettler  v.   Warner,   243    111.   600. 

hold  "for  the  space  of  twenty-five  Cf.  McCutcheon  v.  Pullman  Bank, 

years  from  and  after  the  date  of  251  111.  550. 
the  probate"  of  the  will  was  held  *  1  Cox,  324. 

void  for  remoteness.     But  hi  41  *  L.  R.  6  Eq.  319. 

Am.  Law  Rev.  613,  42  Am.  Law  «  17  Ch.  D.  368. 


AND   ITS   COROLLARIES. 


191 


case  might  have  been  decided  in  the  way  it  was  on  another 
ground,1  and  there  can  be  little  doubt  that  Cooper  v.  Laroche 
must  be  considered  one  of  the  not  unfrequent  blunders  of  that 
learned  judge.2  Jee  v.  Audley  was  followed,  and  the  decision 
of  Malins,  V.  C.,  discussed,  in  Re  Dawson.3 


1  See  Gray,  Restraints  on  Alien- 
ation (2ded.),  §272/. 

2  See     71     Law    Times,     186; 
Challis,  Real  Prop.   (3d  ed.)   191. 
For   other   erroneous   decisions   or 
dicta  of  Vice-Chancellor  Malins  on 
questions  of  remoteness,  see  §  207, 
ante;  §§  325,  382,  447,  631,  post. 

There  is  a  class  of  decisions 
which  must  not  be  confounded  with 
this.  Sometimes  A.  has  an  abso- 
lute interest  in  personalty,  subject 
to  the  contingency  of  there  being 
children  of  herself  or  of  some  other 
person.  In  such  cases  the  usual 
practice  in  Chancery  is  not  to  turn 
over  the  custody  of  the  fund  to  A.; 
but  when,  from  the  age  of  A.  or  of 
the  other  person,  there  is  no  chance 
that  there  will  ever  be  such  chil- 
dren, the  Court  of  Chancery  will 
order  the  fund  paid  to  A.,  on  her 
giving  security  to  turn  it  over  to  the 
children,  if  born.  There  is  no  ques- 
tion of  title  here,  but  only  of  cus- 
tody and  management.  Leng  v. 
Hodges,  Jac.  585.  Fraser  v.  Fraser, 
Id.  586,  note.  Hamilton  v.  Brick- 
wood,  5  L.  J.  N.  s.  Ch.  144.  Brown 
v.  Pringle,  4  Hare,  124.  Davis  v. 
Bush,  8  Jur.  1114,  note.  Miles  v. 
Knight,  17  L.  J.  Ch.  458;  12  Jur. 
666.  Mackenzie  v.  King,  17  L.  J. 
Ch.  448.  Dodd  v.  Wake,  5  De  G.  & 
Sm.  226  (which  perhaps  goes  fur- 


ther than  any  other  case).  Lyddon 
v.  Ellison,  19  Beav.  565.  Edwards 
v.  Tuck,  23  Beav.  268.  Ryan's  Set- 
tlement, 9  W.  R.  137.  Price  v. 
Boustead,  8  L.  T.  R.  N.  s.  565. 
Vidler  v.  Parrot,  12  W.  R.  976. 
Haynes  v.  Haynes,  35  L.  J.  Ch. 
303;  14  W.  R.  361.  Widdow's 
Trusts,  L.  R.  11  Eq.  408.  Milner's 
Estate,  L.  R.  14  Eq.  245.  Browne 
v.  Taylor,  [1872]  W.  N.  190.  Sum- 
mers's  Trusts,  22  W.  R.  639.  Belt's 
Estates,  25  W.  R.  901.  Allason's 
Trusts,  36  L.  T.  R.  N.  s.  653. 
Archer  v.  Dowsing,  [1879]  W.  N. 
43.  Taylor's  Trust,  43  L.  T.  N.  s. 
795;  29  W.  R.  350.  Maden  v.  Tay- 
lor, 45  L.  J.  Ch.  569.  Davidson 
v.  Kimpton,  18  Ch.  D.  213.  Re 
Taylor's  Settlement  Trusts,  [1881] 
W.  N.  12.  Estate  of  Mellon,  16 
Phila.  323;  s.  c.  sub  nom.  Gowen's 
App.,  106  Pa.  288.  In  re  Commis- 
sioners of  Streets,  7  Ir.  Eq.  484. 
Farrell  v.  Cameron,  29  Grant,  313. 
See  also  Payne  v.  Long,  cited  19  Ves. 
571;  Defflis  v.  Goldschmidt,  1  Mer. 
417,  422;  19  Ves.  566,  572;  Be 
Dawson,  39  Ch.  D.  155,  164,  165; 
2  Seton,  Decrees  (4th  ed.),  976; 
Stirling  v.  Urquhart,  14  Rettie,  C. 
of  Sess.  112.  The  case  of  In  re  Ric- 
ards's  Trust  Estate,  97  Md.  608,  is 
contra.  But  cf.  Brandon  v.  Wood- 
thorpe,  10  Beav.  463;  Re  Overhill's 


»  39  Ch.  D.  155.  See  also  Re 
Hocking,  [1898]  2  Ch.  (C.  A.)  567; 
Stout  v.  Stout,  44  N.  J.  Eq.  479; 
Flora  v.  Anderson,  67  Fed.  Rep. 


182.  Observe  the  passages  from 
Co.  Lit.  40,  a,  6,  cited  39  Ch.  D. 
163,  164;  [1898]  2  Ch.  (C.  A.) 
571. 


192  THE   RULE  AGAINST  PERPETUITIES 

5.   Lives  in  Being. 

§  216.  The  contingency  may  be  postponed  for  any  number 
of  lives,  provided  they  are  all  in  being  when  the  contingent 
interest  is  created;  and  the  persons  whose  lives  are  taken  need 
have  no  interest  in  the  estate.  In  Thellusson  v.  Woodford 1 
the  testator  directed  that  the  income  of  his  property  should  be 
accumulated  during  the  lives  of  all  his  sons  and  grandsons 
and  grandsons'  issue  who  were  alive  at  his  death,  and  that  on 
their  death  the  property  with  its  accumulations  should  be 
divided  into  three  lots,  each  lot  to  go  to  the  eldest  male  lineal 
descendant  of  one  of  his  sons  respectively.  It  was  earnestly 
urged  by  counsel  that  lives  could  not  be  taken  in  this  way 
to  prolong  the  period  for  the  happening  of  the  gift  over.2 
But  Lord  Chancellor  Loughborough,  assisted  by  Lord  Alvan- 
ley,  M.  R.,  and  Lawrence  and  Buller,  JJ.,  sustained  the  will; 
and  his  decree  was  affirmed  in  the  House  of  Lords  in  accord- 
ance with  the  unanimous  opinion  of  the  judges.3 

§  217.  The  difficulties  which  might  arise  hi  case  testators 
were  allowed  to  select  any  number  of  lives  for  the  purpose  of 
prolonging  the  period  within  which  a  future  estate  might  vest 
were  strongly  pressed  by  counsel  in  Thellusson  v.  Woodford. 
Suppose,  for  instance,  they  said,  that  "all  the  members  of 
both  Houses  of  Parliament,  all  the  members  of  both  Univer- 

Trusts,  22  L.  J.  Ch.  485;  17  Jur.  but  against  that  of  Lord  St.  Leon- 

342;  Groves  v.  Groves,  12  W.  R.  45;  ards,  Sugd.  Vend.  &  P.  (14th  ed.) 

Conduitt  v.  Soane,  19  W.  R.  817;  418;  and  accord.  Whitney  v.  Groo, 

Croxton  v.  May,  9  Ch.  D.  388;  Re  40  D.  C.  Ap.  496,  and  Re  Tinning 

Hocking,  [1898]  2  Ch.  (C.  A.)  567;  and  Weber,  8  Ontario  L.  R.  703. 

Towle  v.   Delano,    144   Mass.   95;  Contra,  List  v.  Rodney,  83  Pa.  483. 

Bowlin  v.  R.  I.  Hosp.  Trust  Co.,  See  Miller  v.  Macomb,  26  Wend. 

31  R.  I.  289;  Flora  v.  Anderson,  229,    234,    affirming    Macomb    v. 

67  Fed.  Rep.  182;  Co.  Lit.  40  a,  ft.  Miller,  9  Paige,  265. 

In  Browne  v.  Warnock,  7  L.  R.  »  4  Ves.  227;  11  Ves.  112;  1  B. 

Ir.  3,  a  title,  good  only  on  the  pre-  &  P.  N.  R.  357. 
sumption  that  a  woman  of  sixty-  2  4  Ves.  242-244,  277-279,  290- 

three  would  not  have  a  child,  was  292,   300-303,   314;   11   Ves.   116- 

forced  on  a  purchaser,  in  accord-  119;  2  Harg.  Jurid.  Arg.  128-142. 
ance  with  Mr.   Dart's  opinion,   1  *  See  §  190,  ante.  For  earlier  cases 

Dart,  Vend.  &  P.   (7th  ed.)  385,  to  the  same  effect,  see  §  189,  ante. 


AND   ITS   COROLLARIES.  193 

sities,"  l  "all  the  persons  whose  lives  are  comprised  in  the 
several  existing  tontines," 2  were  taken;  or  the  executory 
devise  was  not  to  take  effect  "so  long  as  any  person  can  be 
found  in  Europe,  or  rather  in  any  part  of  the  known  world, 
who  was  either  living  or  in  the  womb  at  the  death  of  the 
particular  testator."  3  The  only  limitation  suggested  by  the  op- 
posing counsel  or  by  the  Court  was  that  the  number  of  persons 
taken  must  be  so  limited  that  evidence  of  their  death  could 
be  obtained.  "When  it  is  asserted  that  the  rule  permits  the 
vesting  to  be  postponed  during  as  many  lives  as  can  be  stated, 
it  must  be  asserted  with  this  qualification;  provided,  they  are 
not  more  than  will  admit  of  making  out,  by  reasonable  evi- 
dence, at  what  time  the  survivor  ceases  to  exist."  4  Mac- 
donald,  C.  B.,  in  giving  the  opinion  of  the  judges  in  the  House 
of  Lords,  cites  the  language  of  Twisden,  J.,  in  Love  v.  Wynd- 
ham,6  and  says:  "By  this  expression  he  must  be  understood 
to  mean  any  number  of  lives  the  extinction  of  which  could  be 
proved  without  difficulty."  6  And  again:  "But  it  is  asked, 
shall  lands  be  rendered  unalienable  during  the  lives  of  all  the 
individuals  who  comprise  very  large  societies  or  bodies  of  men, 
or  where  other  very  extensive  descriptions  are  made  use  of? 
It  may  be  answered  that,  when  such  cases  occur,  they  will, 
according  to  their  respective  circumstances,  be  put  to  the 
usual  test,  whether  they  will  or  will  not  tend  to  a  perpetu- 
ity, by  rendering  it  almost,  if  not  quite,  impracticable  to 
ascertain  the  extinction  of  the  lives  described;  and  will  be 
supported  or  avoided  accordingly."  7  "The  language  of  all 
the  cases  is,  that  property  may  be  so  limited  as  to  make  it 
unalienable  during  any  number  of  lives,  not  exceeding  that 
to  which  testimony  can  be  applied,  to  determine  when  the 
survivor  of  them  drops."  8 

1  4  Ves.  244.  •  1  Mod.  50,  54;  1  Sid.  450,  461; 

1  4  Ves.  277.  §  167,  ante. 

»  4  Ves.   278;    2    Harg.   Jurid.  •  11  Ves.  134. 

Arg.  131.  '  11  Ves.  136. 

4  4  Ves.  290.  •  Per  Lord   Eldon,  C.,    11  Vea 

146.    See  Harg.  Thel.  Act,  §  18. 


194  THE   RULE   AGAINST   PERPETUITIES 

§  218.  In  Cadell  v.  Palmer l  the  executory  devise  was  to 
take  effect  on  the  death  of  twenty-eight  persons.2  The  Real 
Property  Commissioners,  in  their  Third  Report  (1832),3 
treated  the  question  fully,  and  rejected  the  suggestion  of 
limiting  the  number  of  lives,  or  of  requiring  the  lives  to  be 
those  of  persons  taking  an  interest  in  the  property,  but  recom- 
mended that  it  should  not  be  lawful  to  take  lives  arbitrarily, 
and  that  lives  should  not  be  made  use  of  to  limit  a  term  or 
period  within  which  to  create  interests  too  remote  if  created 
out  of  an  estate  of  inheritance;  e.  g.  an  estate  to  A.,  for  the 
lives  of  twenty  persons,  in  trust  to  pay  the  income  to  B.  for 
life,  remainder  to  his  unborn  son  for  life,  remainder  to  the 
son  of  such  son,  etc.  These  suggestions  have  not,  however, 
been  adopted  in  England.4  It  is  quite  possible  that  the  whims 
of  testators  may  some  day  compel  the  courts  to  lay  down  a 
.rule  limiting  the  number  of  lives  which  can  be  taken.  At 
present  there  is  no  limit. 

§  219.  In  Pownall  v.  Graham,6  a  testator  gave  his  estate 
in  trust  for  his  brothers  for  life,  and  on  the  death  of  the  sur- 
vivor to  apply  the  income  for  the  benefit  of  such  of  their  chil- 
dren as  should  appear  to  the  trustees  to  "stand  most  in  need  of 
the  same,  and  that  regularly,  from  year  to  year,  as  the  law  in 
such  cases  admits,"  and,  "after  the  law,  as  mentioned  aforesaid, 
admits  of  no  further  division  among  such  of  my  brothers' 
children,"  then  over.  Lord  Romilly,  M.  R.,  said:  "The  law 
would  admit  this  trust  for  division  amongst  the  children  to  go 
on  as  long  as  any  person  living  at  the  moment  of  the  testator's 
death  was  in  existence,  and  during  twenty-one  years  after  the 
life  of  the  longest  liver  of  any  person  then  in  existence.  But  it 
would  be  impossible  to  ascertain  when  that  period  would  cease; 
and,  if  it  were,  all  the  children  of  his  brother  would  probably 

1  1  Cl.  &  F.  372;  7  Bl.  H.  B.  202;          «  On     the    legislative     changes 

10  Bing.  140.  which  have  been  made  in  some  of 

1  See    Bender    v.    Bender,    225  the   United   States  on   this  point 

Pa.  434.  see  §§  742,  747,  751,  post. 

•  Pp.  37-39.    Lewis,  Perp.  App.  •  33  Beav.  242. 

xiv-xvii. 


AND   ITS   COROLLARIES.  195 

be  then  dead,  and  the  gift  over  would  fail  of  taking  effect.  I 
am  of  opinion,  therefore,  that  it  is  impossible  so  to  construe  it, 
and  that  the  period  from  which  the  twenty-one  years  must 
begin  to  be  calculated  is  the  death  of  the  last  surviving  brother. 
In  no  other  way  can  effect  be  given  to  this  trust,  for  the  testator 
might  have  directed  it  to  endure  as  long  as  any  of  the  children 
in  a  charity  school  should  live  and  twenty-one  years  after;  but 
unless  he  so  expressed  it,  it  could  not  be  maintained,  as  it 
would  be  impossible  for  the  trustees  to  ascertain  when  the 
trust  ceased.  The  general  scope  and  object  of  the  will  itself 
gives  the  explanation.  No  one  contends  that  the  trust  is  to 
go  on  until  the  death  of  everybody  in  existence  at  the  tes- 
tator's death,  and  both  parties  have  referred  to  the  will  as 
being  the  guide  from  which  the  period  from  which  the  twenty- 
one  years  is  to  begin  to  run  is  to  be  ascertained." 

§  219  a.  In  re  Moore.1  A  testator  bequeathed  personal 
property  in  trust  to  apply  the  income  in  keeping  in  repair  her 
brother's  tomb  in  Africa,  "for  the  longest  period  allowed  by 
law,  that  is  to  say,  until  the  period  of  twenty-one  years  from 
the  death  of  the  last  survivor  of  all  persons  who  shall  be  living 
at  my  death."  Joyce,  J.,  held  the  legacy  bad  for  uncertainty.2 

§  219  6.  In  Fitchie  v.  Brown3  A.,  by  will,  directed  that  the 
residue  of  his  estate  should  be  "placed  in  trust  for  as  long 
a  period  as  is  legally  possible,  the  termination  or  ending  of 
said  trust  to  take  place  when  the  law  requires  it."  He  ap- 
pointed a  trustee,  and  directed  the  payment  of  annuities  to 
some  forty  persons  named,  to  them  for  life,  and  on  their  death 
to  their  heirs,  except  three  who  were  to  have  only  Me  interests. 
"On  the  final  ending  and  distribution  of  the  trust,  the  trust 
fund  to  be  divided  equally  among  those  persons  entitled  at 
that  time  to  the  aforementioned  annuities."  By  a  codicil  he 

1  [1901]  1  Ch.  936.  in  trust    was  immediate,  and  the 

2  Mr.  Sweet  in   1   Jarm.  Wills,  Rule  has  nothing  to  do  with  the 
(6th  ed.)  297,   455,  says  that  the  end  of  a  trust.     See  §§  232  et  seq., 
gift  was  not  void  for  uncertainty,  post. 

but   was   void    within    the    Rule          J  18  Hawaii,  52;  211  U.  S.  321. 
against  Perpetuities;  but  the  gift 


196  THE   BULB   AGAINST  PERPETUITIES 

gave  an  annuity  to  a  charitable  corporation  "under  the  same 
conditions  as  the  other  annuitants."  The  Supreme  Court  of  the 
United  States,  affirming  the  decree  of  the  Supreme  Court  of 
Hawaii,  followed  Pownall  v.  Graham,  and  held  that  the  trust 
continued  for  twenty-one  years  after  the  death  of  all  the 
persons  named  as  annuitants,  and  that  the  gift  for  distribution 
at  the  end  of  the  trust  was  valid. 

6.  Period  of  Gestation. 

§  220.  Whatever  may  have  formerly  been  the  law,  it  is 
now  generally  agreed  that  a  child  en  ventre  sa  mere  is  to  be 
considered  as  born,  when  it  will  be  for  its  benefit  to  be  so  con- 
sidered.1 Whether,  as  a  general  principle,  such  a  child  will 
be  considered  as  born  for  the  benefit  of  third  persons  is  still 
sub  judice.2  But  whether  or  not  this  is  true  as  a  general  prin- 
ciple, it  is  true  in  questions  of  remoteness.  Thus  a  devise  to 
such  of  the  grandchildren  of  the  testator  as  reach  twenty-one 
is  valid;  for  although  the  testator  may  have  a  posthumous 
child,  it  will  be  considered  as  born  at  the  testator's  death. 
Yet  here  it  will  be  so  considered,  not  for  its  own  sake,  but  for 
the  sake  of  the  grandchildren. 

§  221.  Often  two  periods  of  gestation  are  allowed.  Thus, 
in  the  case  suggested  in  the  previous  section,  a  grandchild 
may  be  a  posthumous  child  of  a  posthumous  child.  And  again, 
a  very  common  form  of  testamentary  gift  is  to  the  testator's 
children  for  life,  and  on  their  death  to  their  children;  but  if 
these  latter  all  die  under  twenty-one,  then  to  B.  and  his  heirs. 
Here  the  gift  to  B.,  a  stranger,  is  good.3 

§  221  a.  In  re  Wilmer's  Trusts*  a  testatrix  devised  land  to 

1  Doe  d.  Clarke  v.  Clarke,  2  H.  5  Gray,   Cases  on  Property,    (2d 

Bl.  399.     See  Marsh  v.  Reed,  184  ed.)  pages  48-54,  note,  718. 
111.    263;    Phillips    v.    Herron,    55  »  See  Long  v.  Blackall,  7  T.  R. 

Ohio  St.  478;  and  Reporter's  note  100;   Thellusson  v.   Woodford,    11 

to  Randolph  v.  Randolph,  40  N.  J.  Ves.  112,  143;  2  Harg.  Jurid.  Arg. 

Eq.  73.  93-126;  Lewis,  Perp.  147-149. 

*  The  authorities  are   collected          «  [1903]  1  Ch.  874;  [19031  2  Ch. 

411. 


AND    ITS  COROLLARIES.  197 

trustees  in  trust  to  pay  the  income  to  M.  during  her  life,  and 
on  her  death  to  stand  possessed  of  the  land  in  trust  for  the  sons 
of  M.  (with  certain  exceptions)  born  or  to  be  born,  successively 
for  life,  with  remainder  upon  the  death  of  each  such  son  upon 
trust  for  his  first  and  other  sons  successively  in  tail  male.  M. 
had  a  son  S.  (not  within  the  exceptions)  who  was  begotten, 
but  not  born,  at  the  death  of  the  testatrix.  It  was  held  by 
Buckley,  J.,  and  by  the  Court  of  Appeal  that  S.  took  a  life 
estate,  and  that  the  remainder  to  his  first  and  other  sons  was 
good,  although  it  would  have  been  for  the  advantage  of  S.  if 
he  had  been  considered  as  unborn  at  the  testatrix's  death,  for, 
on  that  supposition,  the  remainder  to  his  sons  would  have  been 
too  remote,  and  he  would  have  taken  an  estate  tail  under  a 
subsequent  limitation  in  the  will.  Therefore,  for  the  purposes 
of  the  Rule  against  Perpetuities,  a  child  en  venire  sa  mere  will 
be  considered  as  born,  even  when  it  is  actually  prejudicial 
to  it  to  be  so  considered. 

§  222.  In  some  cases  a  third  period  of  gestation  would 
be  allowed.  Suppose,  for  instance,  a  devise  to  testator's 
children  for  life,  on  their  death  to  be  accumulated  till  the 
youngest  grandchild  reaches  twenty-one,  and  then  to  be 
divided  among  all  the  grandchildren  then  living,  and  the 
issue  then  living  of  any  deceased  grandchild.  The  testator 
leaves  a  posthumous  child,  who  dies  leaving  one  child,  A., 
born,  and  another,  B.,  en  venire  sa  mere.  B.  is  born  and  reaches 
twenty-one,  but,  before  he  does  so,  A.  dies,  leaving  his  wife 
enceinte,  who  gives  birth  to  a  child  after  B.  reaches  twenty- 
one.  Here  we  have  (1)  the  period  until  the  testator's  child  is 
born;  (2)  the  life  of  such  child;  (3)  the  period  after  the  death 
of  such  child  until  B.  is  born;  (4)  the  minority  of  B.;  (5)  the 
period  from  the  time  when  B.  reaches  twenty-one  until  A.'s  child 
is  born.  Here  we  have  a  life,  a  minority  of  twenty-one  years, 
and  three  periods  of  gestation.  This  case  was  discussed  in 
Smith  v.  Fair,1  but  no  decision  was  given  on  the  point.  Mr. 
Lewis 2  thought  the  gift  to  the  issue  of  the  deceased  grandchild 
1  3  Y.  &  C.  328.  *  Perp.,  Addenda,  726. 


198  THE   RULE  AGAINST  PERPETUITIES 

good,  but  afterwards  l  doubted  it,  on  the  ground  that,  so  far  as 
the  grandchildren  were  concerned,  the  period  of  gestation  of 
the  great-grandchildren  was  a  term  in  gross,  and  that,  so  far 
as  the  great-grandchildren  were  concerned,  the  period  of 
gestation  of  the  grandchildren  was  a  term  in  gross.  This  is 
true,  but  it  would  not  seem  to  invalidate  the  gift.  It  was 
determined  in  Cadell  v.  Palmer2  that  the  time  of  gestation 
could  be  allowed  only  when  gestation  in  fact  existed;  but  if 
gestation  exists,  a  gift  to  take  effect  on  the  reaching  of  majority 
by  an  infant  now  en  venire  sa  mere  is  good,  whether  such  gift  be 
to  a  third  person  or  not.  If  Mr.  Lewis's  doubt  was  well  founded, 
gifts  over  to  third  persons  on  grandchildren  dying  under  twenty- 
one,  like  that  given  in  section  220,  would  be  bad;  for  so  far  as 
the  children  are  concerned  the  period  of  gestation  of  the  grand- 
children is  a  term  in  gross,  and  so  far  as  the  grandchildren  are 
concerned  the  period  of  gestation  of  the  children  is  a  term  in 
gross;  yet  such  limitations  are  exceedingly  common,  and  their 
validity  is  undoubted.  It  is  submitted  that  the  true  doctrine 
is  that  in  applying  the  Rule  against  Perpetuities  a  child  en 
venire  sa  mere  will  be  considered  as  born. 

7.   Term  of  Twenty-one  Years. 

§  223.  The  term  of  twenty-one  years  may  be  taken  in  gross 
without  reference  to  any  infancy.  This  was  settled  in  England 
by  the  case  of  Cadell  v.  Palmer,3  and  seems  to  have  never 
been  questioned  in  America.  The  curious  and  illogical  manner 
in  which  the  Rule  against  Perpetuities  was  extended  beyond 
lives  in  being  has  been  stated  in  the  preceding  chapter.4 

§  224.  As  early  as  1813  twenty-one  years  after  lives  in 
being  was  recognized  in  the  United  States  by  Judge  Story  as 
the  limit  of  the  Rule  against  Perpetuities,5  and,  as  has  been 

»  Suppl.  22-26.  4  See  §§  171-188. 

1  1  Cl.  &  F.  372;  7  Bl.  N.  s.  202;  •  Barnitz    v.   Casey,   7    Cranch 

10  Bing.  140.  456,  469.  See  Pleasanta  v.  Pleasants, 

»  1  Cl.  &  F.  372;  7  Bl.  N.  8.  202;  2  Call,  319,  331. 
10  Bing.  140. 


AND   ITS   COROLLARIES.  199 

said,  the  doctrine  has  met  with  acceptance  everywhere.  In 
Mayor  of  New  York  v.  Stuyvesant,1  however,  it  appears  to 
have  been  overlooked.  There  A.,  in  1825,  conveyed  a  parcel 
of  land  to  B.  and  C.  for  their  own  use,  but  in  trust  to  permit 
A.,  his  heirs  and  assigns,  until  the  parcel  was  opened  as  a 
public  square,  to  enjoy  the  rents,  and  after  B.  and  C.,  their 
heirs  and  assigns,  should  have  elected  to  lay  open,  and  should 
actually  lay  open,  the  same  as  a  public  square,  then  in  trust 
that  the  same  be  forever  kept  open  and  used  as  a  public  square; 
provided,  that  if  the  parcel  should  not  within  thirty  years  be 
so  opened,  then  the  land  should  revert  to  A.,  his  heirs  and 
assigns,  for  their  own  use.  The  parcel  was  actually  laid  open 
in  1850.  It  was  held  that  A.  had  lost  all  claim  to  the  land. 
It  would  seem  that  the  dedication  to  the  public  was  a  shifting 
trust  which  was  bad  for  remoteness,  as  it  might  not  take  effect 
for  thirty  years;  but  the  point  is  not  suggested  in  the  opinion. 

8.  Limitations  of  an  Estate  for  Life  or  of  a  Term  not 
exceeding  Twenty-one  Years. 

§  225.  No  limitation  of  a  present  life  estate,  or  of  a  present 
term  of  not  more  than  twenty-one  years,  can  be  bad  for  re- 
moteness. Thus  if  an  estate  for  the  life  of  A.  (or  a  term  for 
twenty  years)  is  devised  to  such  of  the  children  of  L.  as  reach 
twenty  five,  but  if  none  of  them  reach  twenty-five  then  over 
to  M.  and  his  heirs,  the  devise  to  M.  is  good,  because  it  must 
take  effect,  if  at  all,  within  the  lifetime  of  A.  (or  within  twenty 
years).  This  is  so  obvious  that  it  is  strange  it  should  ever  have 
been  doubted.  Yet  it  has  been  questioned,  and  there  seems  to 
be  little  authority  directly  deciding  it.2 

§  226.  In  Love  v.  Wyndham 3  (1670)  a  term  for  ninety- 
nine  years,  if  three  lives  so  long  lasted,  was  given  by  the  tes- 
tator to  Dulcibella  his  wife,  on  her  death  to  his  son  Nicholas 
for  life,  and  if  Nicholas  should  die  without  issue,  then  to  his 

1  17  N.  Y.  34.  »  1  Mod.  50;  1  Sid.  450;  2  Keb. 

1  See  Marsden,  Perp.  24,  25,  637;  2  Ch.  Rep.  14;  1  Vent.  79;  1 
193.  Lev.  290;  §  167,  ante. 


200  THE  RULE  AGAINST  PERPETUITIES 

son  Barnaby.  It  was  held  that  the  devise  to  Barnaby  was  void. 
No  attention  was  paid  on  the  bench  or  at  the  bar  to  the  fact 
that  the  term  was  to  last  only  during  the  lives  of  living  persons; 
the  term  was  treated  like  a  simple  term  for  ninety-nine  years; 
and  the  gift  to  Barnaby  was  held  bad  because  of  the  character 
of  the  contingency,  not  of  its  remoteness.  The  Rule  against 
Perpetuities  had  not  yet  formulated  itself.1 

§  227.  In  King  v.  Cotton 2  the  point  was  raised  but  not 
decided.  The  learned  reporter  says:  "It  seems  rather  to  be 
a  good  limitation."  In  Low  v.  Burron 3  an  estate  for  three 
lives  was  devised  to  M.  for  life,  remainder  to  her  issue  male, 
remainder  to  L.  Lord  Chancellor  Talbot  thought  that  the 
gift  to  L.  was  good,  and  that  M.  could  not  bar  it.4  He  said: 
"Here  can  be  no  danger  of  a  perpetuity;  for  all  these  estates 
will  determine  on  the  expiration  of  the  three  lives.  So  if, 
instead  of  three,  there  had  been  twenty  lives,  all  spending  at 
the  same  time,  all  the  candles  lighted  up  at  once,  it  would 
have  been  good;  for,  in  effect,  it  is  only  for  one  life,  viz.  that 
which  shall  happen  to  be  the  survivor."  This  case  seems 
authority  for  the  proposition  that  limitations  of  an  estate  pur 
auter  vie  cannot  be  too  remote.5 

1  See  Lewis,  Perp.  675.  by  a  quasi  tenant  in  tail  of  an  estate 

*  2  P.  Wms.  674,  676.  pur  auter  vie  was  held  not  to  bar  the 
8  3  P.  Wms.  262.  remainder  over.    But  the  tenant  in 
4  The  last  point  has  since  been  tail  was  himself  a  remainder-man, 

determined  otherwise.     See  notes  not  in  possession  at  the  time  of  his 

to  Low  v.  Burron;  Fearne,  C.  R.  conveyance,  and  a  conveyance  by 

496  et  seq. ;  Tud.  L.  C.  in  Real  Prop.  such  quasi  tenant  in  tail  in  remain- 

(4th  ed.)  101;  Challis,  Real  Prop.  der  does  not  bar  subsequent  re- 

(3d  ed.)  362.  mainders,  without  the  concurrence 

*  See  Saltern  v.  Saltern,  2  Atk.  of    the    holder    of    the    particular 
376;  Campbell  v.  Harding,  2  Russ.  estate  (see  Edwards  v.  Champion, 
A  M.  390,  406;  Harris  v.  Davis,  1  3  De  G.  M.  &  G.  202).    Therefore 
Coll.  416,  423;  Mills  t>.  Smith,  193  the   decision   was   consistent   with 
Mass.   11,   17;  Fearne,  C.  R.  496  the   power  of   a   quasi   tenant    in 
et    seq.;    Id.    500,    Butler's    note;  tail   in  possession  to  bar  remain- 
Lewis,    Perp.    673-681;    Prior    on  ders,  and  a  future  interest  which 
Lim.  §  161;  8  Jur.,  pt.  2,  261.  can     be     barred     is     never     too 

In  Wastneys  v.  Chappell,  3  B.  remote.  But  this  does  not  ap- 
P.  C.  (Toml.  ed.)  50,  a  conveyance  ply  to  Low  v.  Burron,  for  the  re- 


AND   ITS   COROLLARIES.  201 

§  228.  In  the  United  States  the  question  presented  itself  in. 
bequests  of  slaves.  If  a  female  slave  was  bequeathed  to  A., 
but  if  he  died  without  issue  then  to  B.,  the  gift  was  too  re- 
mote; for  the  gift  of  a  female  slave  included  the  gift  of  her 
issue.1  In  Matthews  v.  Daniel  *  a  negro  man  and  a  horse 
were  bequeathed  to  A.  and  her  heirs,  but  if  she  died  without 
issue  then  over.  The  gift  over  was  held  too  remote.  The 
case  is  very  briefly  reported.  The  Court  say:  "The  argument 
that  here  the  event  must  happen,  if  at  all,  in  the  lifetime  of 
the  negro,  and  that  so  the  event  is  limited  to  a  life  in  being, 
has  at  least  the  merit  of  novelty  to  recommend  it,  but  will 
not  bring  the  case  within  the  legal  limits."  But  it  was  easier 
to  sneer  at  the  argument  than  to  refute  it.  It  seems  unan- 
swerable. In  Biscoe  v.  Biscoe3  there  was  a  gift  of  a  male 
slave  to  J.,  but  if  J.  died  without  issue  then  over.  It  was 
held  that  the  gift  over  was  not  too  remote,  and  that  this 
result  was  produced  by  the  fact  of  the  slave  being  male.  But 
the  case  was  not  decided  on  the  ground  that  no  limitation 
of  a  male  slave  could  be  too  remote,  but  because  the  subject 
matter  of  the  gift  showed  that  the  testator  intended  a  definite 
failure  of  issue;  and  consequently,  in  Hatton  v.  Weems*  a  like 
gift  over  of  both  negro  men  and  women  was  held  void,  on  the 
ground  that  the  same  rule  of  construction  must  apply  to  both; 
that  an  indefinite  failure  of  issue  was  meant;  and  that  gifts  of 
male  and  female  slaves  after  an  indefinite  failure  of  issue  were 
all  bad.  Sed  qu.5 

mainder  there  was  held  not  bar-  apart  from  the  Rule  against  Per- 

rable  by  the  tenant  in  possession,  petuities,  cestui  que  vie  can  be  a 

That    case,    therefore,    is    author-  person  not  in  esse. 

ity  for   the    proposition    that    no  l  Johnson  v.  Lish,    4   H.  &  J. 

limitation  of  a  life  estate  can  be  411. 

too  remote.  *  2  Hayw.  346. 

If  in  an  estate  pur  outer  vie  one  J  6  Gill  &  J.  232. 

or  more  of  the  cestuis  que  vie  are  4  12  Gill  &  J.  83. 

not  in  esse,  a  limitation  of  such  an  6  See  Johnson'  v.  Lish,  4  H.  &  J. 

estate  might  be  too  remote;  but  441;  Edelen  v.  Middleton,  9  Gill, 

Mr.  Charles  Sweet,  49  Sol.  J.  793,  161;  Royal  v.  Eppes,  2  Munf.  479; 

has  shown  reason  to  doubt  whether,  M'Donald  v.    M'Mullen,   2   Mills, 


202  THE  RULE   AGAINST  PERPETUITIES 

§  228  a.  Must  the  lives  in  being  be  human  lives?  Sup- 
pose a  limitation,  in  itself  too  remote,  be  made  of  a  horse, 
or  dog,  or  parrot,  or  of  some  animal  of  great  longevity,  real 
or  supposed,  such  as  an  elephant,  or  crow,  or  tortoise,  or 
carp,  or  of  a  female  animal,  such  as  a  cow  or  hen,  would  it 
be  void?  l 

§  229.  Low  v.  Burron 2  seems  to  be  the  only  direct  adjudi- 
cation that  a  limitation  of  a  life  estate  cannot  be  too  remote. 
But  to  hold  such  a  limitation  too  remote  would  be  so  palpable 
a  violation  of  the  fundamental  principle  of  the  Rule  against 
Perpetuities,  that  there  can  be  little  doubt  that  Low  v.  Bur- 
ron is  correct  on  this  point. 

8  a.   Covenants  to  renew  Leases. 

§  230.  That  a  lease  for  lives  or  for  years  may  be,  as  matter 
of  fact,  renewed  by  the  lessor  does  not  make  it  bad,  for  the 
lessees  have  no  right  to  a  renewal.3  Suppose,  however,  that 
the  lease  contains  a  covenant  by  the  lessor  for  perpetual 
renewal?  It  is  no  objection  to  a  lease  that  it  contains  such 
a  covenant,  if  the  entire  control  of  the  covenant  is  in  the 
hands  of  those  persons  who  have  vested  interests  under  the 
lease.4  Sir  George  Jessel,  M.  R.,  in  London  &  S.  W.  R.  Co. 

Const.    91;    Hope   v.    Johnson,    2  1  See  Re  Dean,  41  Ch.  D.  552, 

Yerg.  123.  and  App.  H,  §§  905,  906,  post;  and 

It  was  the  law  in  Virginia  that  cf .  18  Jurid.  Rev.  36. 

the  Rule  against  Perpetuities  did  2  3  P.  Wms.  262. 

not  apply  to  provisions  for  eman-  *  8  Jur.,  pt.  2,  273. 

cipation.     Pleasants  v.   Pleasants,  4  Ross   v.  Worsop,  1    B.  P.  C. 

2  Call,  319.    Wood  v.  Humphreys,  (Toml.  ed.)  281.    Sweet  v.  Ander- 

12  Grat.  333.    See  Peggy  v.  Legg,  eon,  2  B.  P.  C.  256.    Hare  v.  Surges, 

6  Munf.  229;  Crawford  v.  Moses,  4  K.  &  J.  45,  57.    Meller  v.  Stanley, 

10  Leigh,  277,  284.    But  in  Ken-  2  De  G.  J.  &  S.  183,  192.    Pollock 

tucky    it    has    been    held    to    ap-  t>.  Booth,  Ir.  R.   9  Eq.  229,  607. 

ply  to  them.     Ludwig  v.  Combs,  Marsden,  Perp.  15.     See  Banks  v. 

1  Met.  (Ky.)  128.     Compare  Wil-  Haskie,    45    Md.    207,    218.      Cf. 

liams  v.  Ash,  1  How.  1,  13;  Har-  Black  more  v.  Boardman,   28  Mo. 

ris    v.     Clarissa,     6     Yerg.     227,  420;  Diffenderfer  v.  St.  Louis  Pub- 

241;  Smith   ».  Dunwoody,  19  Ga.  lie  Schools,  120  Mo.  447,  in  which 

237,  260.  cases  the  Supreme  Court  of  Mis- 


AND   ITS   COROLLARIES.  203 

v.  Gomm,1  speaks  of  this  as  an  exception  to  the  Rule  against 
Perpetuities; 2  but  it  seems  hardly  necessary  to  create  any  ex- 
ception to  meet  the  case,  —  the  covenant  to  renew  is  part  of 
the  lessee's  present  interest.3  The  right  which  the  present 
possessor  of  land  has  to  continue  or  to  drop  his  possession  is 
not  a  right  subject  to  a  condition  precedent.  The  Rule  against 
Perpetuities,  as  has  been  remarked  before,  although  a  strict 
rule,  is  yet  a  practical  rule.  An  estate  for  years  with  a  per- 
petual covenant  for  renewal  is,  so  far  as  questions  of  re- 
moteness are  concerned,  substantially  a  fee,  and  as  such  it  is 
regarded.4  If  the  right  of  renewal,  however,  is  'not  within  the 
control  of  those  having  vested  interests  under  the  lease,  and 
if  the  interest  of  the  person  within  whose  absolute  control  the 
right  will  be  may  not  vest  within  the  period  required  by  the 
Rule  against  Perpetuities,  the  limitation  to  such  person  is 
bad.5  Thus,  if  an  estate  for  lives  or  years  with  a  covenant  for 
perpetual  renewal  is  devised  to  A.  for  life,  and  on  his  death  to 
his  (unborn)  children  and  their  heirs,  but  if  all  his  children 
die  under  twenty-five  then  to  C.  and  his  heirs,  the  devise  to 
C.  is  bad.6 

§  230  a.  The  author's  learned  friend,  Mr.  T.  Cyprian  Wil- 
liams, in  an  article  in  the  Solicitor's  Journal,7  comments  on 
the  preceding  section;  and  in  reference  to  the  language  in  the 

eouri,  while  declaring  that  the  law  §  221.    Such  a  covenant,  however, 

does  not  favor  a  perpetual  covenant  was  held  void  as  creating  a  per- 

for  the  renewal  of  a  lease,  recog-  petuity  in  Morrison  v.  Rossignol, 

nizes  that  if  the  intention  of  the  5  Cal.  64;  and  see  Syms  v.  Mayor, 

parties  to  create  such  a  perpetual  18  Jones  &  Sp.  289.    Cf.  Hudgins 

covenant,  is  unmistakable,  the  law  v.  Bowes,  110  S.  W.  Rep.  (Tex.  Civ. 

will  enforce  it.  Ap.),  178. 

1  20  Ch.  D.  562,  579.  *  See    Hope    t>.    Gloucester,   7 

*  And  see   Challis,  Real  Prop.  De  G.  M.  &  G.  647;  A.  G.  v.  Green- 

(3d  ed.)  186.  hill,  9  Jurist,  N.  s.  1307;  Brush  v. 

»  See  Moore  v.  Clench,  1  Ch.  D.  Beecher,  110  Mich.  597;  Hudgins 

447,    452;    Buckland   v.   Papillon,  v.  Bowes,  110  S.  W.  Rep.  (Tex.  Civ. 

L.  R.  1  Eq.  477;  L.  R.  2  Ch.  67;  Ap.),  178;  Redington  v.  Browne,  32 

Muller  v.  Trafford,    [1901]    1   Ch.  L.  R.  Ir.  347,  357,  358. 
54,  61.  •  8  Jur.,  pt.  2,  273. 

4  See  2  Tiffany,  LandL  &  Ten.  7  42  Sol.  J.  628,  630,  650. 


204  THE   BULB  AGAINST  PERPETUITIES 

text:  "The  covenant  to  renew  is  part  of  the  lessee's  present 
interest.  The  right  which  the  present  possessor  of  land  has  to 
continue  or  drop  his  possession  is  not  a  right  subject  to  a  con- 
dition precedent,"  he  says:  "This  explanation  appears  suffi- 
cient in  the  case  of  an  absolute  covenant  to  renew  a  lease  for 
years,  but  is  not  equally  satisfactory  where  the  right  of  renewal 
is  limited  to  arise  only  on  giving  notice  within  a  particular 
time  and  paying  a  specified  fine;"  and  that  it  does  "some 
violence  to  the  language"  of  such  a  covenant  to  hold  that 
"in  such  a  case  the  equitable  interest  created  is  not  an  in- 
terest to  arise  in  future  on  fulfilment  of  a  condition  precedent, 
but  a  present  interest  defeasible  on  the  condition  subsequent 
of  not  giving  due  notice  to  renew,  or  paying  the  fine."  The 
criticism  has  weight.  The  construction  suggested  does  do 
"some  violence  to  the  language."  The  choice  seems  to  lie 
between  adopting  such  construction,  or  recognizing  that  cove- 
nants to  renew  in  the  form  suggested  by  Mr.  Williams,  are 
either  void,  or  else  are  exceptions  to  the  application  of  the 
Rule  against  Perpetuities. 

§  230  aa.  That  covenants  for  the  renewal  of  leases  are  not 
open  to  the  objection  of  remoteness,  and  that  this  is  an  excep- 
tion to  the  Rule  against  Perpetuities,  seems  now  to  be  recog- 
nized as  law.  In  Woodall  v.  Clifton  l  the  opinion  of  Warrington, 
J.,  is  valuable  for  a  full  discussion  of  these  covenants.  He  con- 
cludes2 that  he  "must  treat  these  covenants  to  renew  as  ex- 
ceptions to  the  general  rule  [against  perpetuities]  —  exceptions 
for  which  it  is  very  difficult  to  find  a  logical  justification,  but 
exceptions  which  have  been  probably  recognized  because  they 
were  in  existence  long  before  the  rule  had  been  developed." 
And  in  the  same  case  Romer,  L.  J.,  in  the  Court  of  Appeals,3 
said:  "I  have  always  understood  that  the  exception  of  covenants 
to  renew  a  lease  from  the  Rule  against  Perpetuities  could  not 
be  justified  on  principle,  but  only  by  a  long  series  of  decisions." 
And  in  In  re  Tyrrell's  Estate4  Ross,  J.,  said:  "Contracts  for 

1  [19051  2  Ch.  257.  •  P.  268. 

»  P.  265.  «  [1907]  1 1.  R.  194,  197. 


AND    ITS   COROLLARIES.  205 

the  renewal  of  leases  are  an  exception  to  the  rule.    Why  they  are 
an  exception  nobody  can  tell,"  and  so  In  re  Garde  Browne.1 

§  230  6.  An  option  to  a  tenant  for  years  to  purchase  the 
fee,  exercisable  at  a  remote  time,  is  bad  as  violating  the  Rule 
against  Perpetuities.2  The  matter  is  fully  discussed  by  Mr. 
Williams  in  the  article  cited  in  §  230  a.  The  only  reason  for 
considering  the  Rule  against  Perpetuities  as  inapplicable  to 
such  an  option  is  the  analogy  to  covenants  for  renewal  treated 
in  the  three  preceding  sections.  But  the  exemption  from  the 
Rule  in  the  case  of  covenants  for  renewal  is  either  an  excep- 
tion which  there  is  no  reason  to  extend,  or  is  to  be  explained, 
as  it  is  in  §  230,  on  the  ground  that  the  covenant  to  renew  is 
part  of  the  present  interest,  a  ground  which  cannot  well  be 
taken  when  the  present  interest  is  a  tenancy  for  years,  and  the 
interest  to  be  purchased  is  a  fee.3 

9.   Time  runs  only  from  Testator's  Death. 

§  231.  As  the  law  should  not  take  a  wanton  pleasure  in 
thwarting  the  intention  of  a  testator,  it  seems  strange  that 
it  could  ever  have  been  supposed  that  the  question  of  remote- 
ness was  to  be  determined  by  the  state  of  things  at  the  date  of 
a  testator's  will,  and  not  at  the  time  of  his  death.  The  object 
of  the  Rule  against  Perpetuities  is  to  confine  the  vesting  of 
contingent  estates  to  a  short  period  after  their  creation;  and 
if  it  is  certain  when  the  estate  is  created  that  the  contingent 
event  must  happen  within  the  required  time,  it  seems  a  need- 
less interference  with  the  testamentary  power  to  say  that  the 
estate  is  bad,  because,  at  some  time,  before  the  estate  was 

1  [1911]  1 1.  R.  205.    See  Challis,  275;  1  Wins.  Vend.  &  P.  (2d  ed.) 
Real  Prop.  (3d  ed.)  186;  11  Enc.  370;    2   Tiffany,    Landl.    &    Ten. 
Laws  of  Eng.  (2d  ed.)  70.  §  256;  In  re  Tyrrell's  Estate,  [1907] 

2  Woodall    v.    Clifton,  [1905]  2  1  I.  R.  292,  overruling  s.  c.  [1907J 
Ch.  (C.  A.)  257,  and  see  London  1  I.  R.  194.    On  the  local  law  in 
&  S.  W.  R.  Co.  v.  Gomm,  20  Ch.  Maryland,  see  Hollander  v.  Central 
D.  562;  §  275,  post;  49  Sol.  J.  64,  Metal  Co.,  109  Md.  131. 

543,  547,  592,  740;  Marsden,  Perp.  »  See    Mr.    Williams's    article, 

14;  1  Dart,  Vend.  &  P.  (7th  ed.)       vbi  supra. 


206 


THE   RULE  AGAINST  PERPETUITIES 


created  and  when  its  existence  was  entirely  in  the  control 
of  the  testator,  it  was  not  certain  that  the  contingent  event 
would  happen  within  the  required  time.  For  example,  land 
is  devised  to  those  children  of  A.  who  reach  twenty-five.  If 
the  testator  die  before  A.  the  gift  is  too  remote,  because  A. 
may  have  a  child  born  after  the  testator;  but  if  A.  die  before 
the  testator,  there  can  be  no  objection  to  the  devise,  because 
it  must  take  effect,  if  at  all,  in  the  lives  of  A.'s  children,  and 
none  of  these  can  be  born  after  the  testator's  death.  Mr. 
Lewis  in  the  Supplement  to  his  treatise  proves  superabun- 
dantly that  the  time  of  the  testator's  death  is  the  true  period 
at  which  to  judge  of  the  remoteness  of  the  provisions  in  his 
will.1  The  rule  that  the  question  of  remoteness  is  to  be  de- 
termined from  the  time  of  the  testator's  death,  and  not  of  his 
will,  is  now  settled.2 


1  P.  27  et  seq.    But  see  A.  G.  «/. 
GUI,  2  P.  Wms.  369,  370;  Gower  v. 
Grosvenor,  5  Mad.  337,  341. 

2  Vanderplank  v.  King,  3  Hare, 
1,  17.    Faulkner  v.  Daniel,  Id.  199, 
216.     Williams  v.  Teale,   6  Hare, 
239,   251.     Cattlin   v.   Brown,    11 
Hare,    372,    382.      Dungannon    v. 
Smith,  12  Cl.  &  F.  546  et  passim 
(see   Lewis,    Perp.   Suppl.   53-57). 
Peard  v.  Kekewich,  15  Beav.  166. 
Southern  v.  Wollaston,  16  Beav.  166, 
276.    Monypenny  v.  Bering,  2  De  G. 
M.  &  G.  145,  170.    Hale  v.  Hale,  3 
Ch.  D.  643, 645.  Hosea  v.  Jacobs,  98 
Mass.  65,  67.     1  Jarm.  Wills  (6th 
ed.)  300.    Tud.  L.  C.  in  Real  Prop. 
(4th  ed.)  595.    4  Kent,  Com.  (12th 
ed.)  283,  note  1.    See  Rye's  Settle- 
ment, 10  Hare,  106,  112;  Murphey 
0.  Brown,    159  Ind.   106;   Penfield 
».  Tower,  1  N.  Dak.  216,  218,  219. 

So  in  New  York,  under  the  Re- 
vised Statutes.  Lang  v.  Ropke,  5 
Sandf.  S.  C.  363,  369,  370.  Lang 
v.  Wilbraham,  2  Duer,  171,  175. 


Griffen  v.  Ford,  1  Bosw.  123,  137. 
In  Odell  v.  Youngs,  64  How.  Pr. 
56,  Beach,  J.,  in  the  Court  of  Com- 
mon Pleas,  said  that  Schettler  v. 
Smith,  41  N.  Y.  328,  Van  Nos- 
trand  v.  Moore,  52  N.  Y.  12,  and 
"Colton  v.  Fox,  67  N.  Y.  348,  seemed 
to  overrule  Lang  v.  Ropke  and 
Griffen  v.  Ford,  and  he  held  that 
the  question  of  the  remoteness  of  a 
devise  must  be  determined  as  from 
the  date  of  the  will  and  not  at  the 
testator's  death;  but  the  three 
cases  cited  by  him  as  overruling 
Lang  v.  Ropke  and  Griffen  v.  Ford 
have  nothing  whatever  to  do  with 
the  matter,  and  the  decision  in 
Odell  v.  Youngs  is  certainly  wrong. 

So  also  in  Ohio,  under  St.  of 
1811,  2  Rev.  Sts.  (1880)  §  4200, 
McArthur  v.  Scott,  113  U.  S.  340, 
382;  and  in  Michigan,  under  2  How. 
Sts.  §  5531,  3  Mich.  Compiled 
Laws,  §  8797,  Mullreed  v.  Clark, 
110  Mich.  229. 

Suppose    personal    property    is 


AND    ITS   COROLLARIES. 


207 


10.  Enough  if  Interest  begins  within  the  Required  Limits. 

§  232.  An  interest  is  not  obnoxious  to  the  Rule  against 
Perpetuities  if  it  begins  within  lives  in  being  and  twenty-one 
years,  although  it  may  end  beyond  them.1  If  it  were  other- 
wise, all  fee-simple  estates  would  be  bad.  The  law  is  the  same 
with  lesser  estates.  That  an  estate  can  be  limited  to  an  unborn 
person  for  life,  whether  there  be  a  gift  over  or  not,  was  re- 
peatedly held  or  assumed  down  to  1820.2  The  only  thing  to  the 


bequeathed  to  A.  and  the  heirs 
of  his  body,  and  if  A.  dies  without 
issue,  then  to  B.,  and  there  is  a 
lapse  by  reason  of  A.'s  death  with- 
out issue  before  the  testator,  does 
B.  take?  There  has  been  a  differ- 
ence of  opinion  on  this  point.  Sir 
Richard  Pepper  Arden,  M.  R.,  in 
Brown  v.  Higgs  (1799),  4  Ves.  708, 
717,  thought  that  B.  would  take; 
so  did  Sir  William  Grant,  M.  R., 
in  Donn  v.  Penny  (1815),  1  Mer. 
20,  22,  23;  and  so  also  did  Lord 
Langdale,  M.  R.,  in  Mackinnon  v. 
Peach  (1838),  2  Keen,  555,  560. 
On  the  other  hand,  Vice-Chancellor 
Knight  Bruce  thought  that  B. 
would  not  take.  Harris  v.  Davis 
(1844),  1  Coll.  416,  424-426;  and 
see  A.  G.  v.  Gill,  2  P.  Wms.  369. 
Cf.  also  Andrew  v.  Andrew,  1  Coll. 
€86,  690  et  seq.;  Hughes  v.  Ellis,  20 
Beav.  193;  Created  v.  Created,  26 
Beav.  621;  Stringer's  Estate,  6  Ch. 
D.  1,  7,  15.  The  Court  of  Appeal 
has  now  held,  in  accordance  with 
common  sense,  that  B.  will  take. 
Re  Lowman,  [1895]  2  Ch.  (C.  A.) 
348;  and  see  Murphey  v.  Brown, 
159  Ind.  106.  Cf.  cases  cited  in 
Gray,  Restraints  on  Alienation 
<2d  ed.),  §  64,  note. 

In  Bullard  v.  Shirley,  153  Mass. 
559,  a  testator  gave  $5,000  to  A., 
•and,  on  his  death,  for  an  illegal 


charitable  purpose,  "failing  which 
it  shall  revert  to  my  heirs."  It  was 
held  that  the  gift  to  the  heirs  was 
not  too  remote. 

1  See  Pulitzer)  v.  Livingston,  89 
Me.  359,  365;  Brooks  v.  Belfast, 
90  Me.  318,  323;  Gray  v.  Whitte- 
more,  192  Mass.  367,  372;  Lennig's 
Est.,  31 W.  N.  C.  (Pa.)  234;  Owens's 
Pet.,  34  W.  N.  C.  (Pa.)  354;  3  Pa. 
Dist.    Rep.  328;   Johnston's  Est., 
1§5   Pa.   179,  184,    185;   Lyons  v. 
Bradley,     168     Ala.      505,     512; 
Madison  v.  Lannon,  170  111.  65,  73, 
74;  Planner  v.  Fellows,  206  111.  136; 
Mettler  v.  Warner,   243   111.    600, 
609;  Holmes  v.  Walter,   118  Wis. 
409;  1  Tiffany,  Real  Prop.,  §§  152, 
155;  App.  M,  §§  970  et  seq.,  post. 

2  Cotton  v.  Heath,  1  Roll.  Ab. 
612,    pi.    3;    Pollexf.    26    (1638). 
Marlborough  v.  Godolphin,  1  Eden, 
404,  415  (1759).    Evans  v.  Astley, 
1  W.  Bl.  521,  523  (1764).    Den  v. 
Page,  3  T.  R.  87,  note  (1783).    Hay 
v.   Coventry,    Id.    83,    86    (1789). 
Routledge  v.  Dorril,  2  Ves.  Jr.  357, 
366,    367     (1794).      Brudenell    v. 
Elwes,  1  East,  442,  452,  453  (1801). 
Foster  t>.   Romney,    11   East,   594 
(1809).      Beard    v.    Westcott,    5 
Taunt.  393;  5  B.  &  Aid.  801  (1813). 
See  Doe  d.  Liversage  v.  Vaughan, 
5  B.  &  Aid.  464;  1  Dowl.  &  Ry.  52 
(1822). 


208 


THE  RULE  AGAINST  PERPETUITIES 


contrary  was  a  dictum  of  Buller,  J.,  in  Robinson  v.  Hardcastle  l 
(1788).  Sir  John  Leach,  however,  in  Deerhurst  v.  St.  Albans* 
(1820),  when  Vice-Chancellor,  said  that  an  estate  for  life  to  an  un- 
born child  was  bad;  and  in  Hayes  v.  Hayes3  (1828),  when  Master 
of  the  Rolls,  he  expressly  decided  that  such  an  estate  was  bad, 
unless  followed  by  a  vested  interest.  This  was  undoubtedly, 
however,  a  slip  of  that  learned  judge.  He  is  said  to  have  himself 
repented  of  it; 4  and  it  has  been  repeatedly  overruled  in  Eng- 
land, sometimes  sub  sikntio,5  sometimes  with  pointed  condem- 
nation.6 And  so  are  the  text-books.7  The  American  authorities 
are  the  same.8  As  an  estate  for  life  is  good  if  it  begins  within 
the  required  limits,  even  if  it  is  to  terminate  upon  a  contingency,9 


1  2  T.  R.  241,  253. 

*  5  Mad.  232,  278. 
»  4  Russ.  311. 

4  Boughton   v.  James,    1    Coll. 
26,  37. 

5  As  in  Bennett  v.  Lowe,  7  Bing. 
535;  5  Moore  &  P.  485;  Ashley  v. 
Ashley,  6  Sim.  358;  Burley  v.  Eve- 
lyn, 16  Sim.  290;  Cattlin  v.  Brown, 
11   Hare,   372,   375;   Boughton  v. 
James,    1   Coll.   26,   36;  Gooch  v. 
Gooch,  14  Beav.  565;  3  De  G.  M. 
&  G.  366/383;  Avern  v.  Lloyd,  L.  R. 
5   Eq.   383;   Stuart   v.   Cockerell, 
L.  R.  7  Eq.  363;  L.  R.  5  Ch.  713; 
Evans  v.  Walker,  3  Ch.  D.  211;  Re 
Roberts,  19  Ch.  D.  520.    So  Hutch- 
inson  v.  Tottenham,  [1898]  1  I.  R. 
403;  Re  Crichton  Estate,  23  Mani- 
toba, 597. 

•  Williams  v.  Teele,  6  Hare,  239, 
250,    and    especially    Hampton   v. 
Holman,   5  Ch.   D.   183,   188,  per 
Jessel,  M.  R. 

7  1  Jarm.  Wills  (6th  ed.)  348. 
Sugd.    Pow.    (8th    ed.)    392,    393. 
Lewis,  Perp.  Suppl.  144.     Leake, 
Land  Law,  334.    Gilb.  Uses  (Sugd. 
ed.)  268.     Marsden,  Perp.  174,  175. 

8  Otis   v.    McLellan,    13   Allen, 


339.  Loring  v.  Blake,  98  Mass. 
253.  Levering  v.  Worthington,  106 
Mass.  86.  Simonds  v.  Simonds,  112 
Mass.  157,  163,  164.  Minot  v. 
Taylor,  129  Mass.  160.  Seaver  v. 
Fitzgerald,  141  Mass.  401.  Dodge 
v.  Bennett,  215  Mass.  545.  Loomer 
v.  Loomer,  76  Conn.  522,  527. 
Stout  v.  Stout,  44  N.  J.  Eq.  479. 
Ogden  v.  McLane,  73  N.  J.  Eq. 
159.  Lawrence's  Estate,  136  Pa. 
354.  Ronckendorff's  Estate,  11  Pa. 
C.  C.  447.  Heald  v.  Heald,  56  Md. 
300.  See  Wood  v.  Griffin,  46  N.  H. 
230;  Goldsborough  v.  Martin,  41 
Md.  488.  But  cf .  Bradford  v.  Griffin, 
40  So.  Car.  468,  471,  stated  §  398  a, 
post;  Brown  v.  Columbia  Finance 
Co.,  123  Ky.  775. 

If  property  is  shared  among  a 
class  for  their  lives,  and  some  of  the 
class  may  not  come  into  existence 
within  the  required  limits,  of  course 
the  whole  gift  is  bad.  Barnum  v. 
Barnum,  26  Md.  119.  Deford  v. 
Deford,  36  Md.  168.  Goldsborough 
v.  Martin,  41  Md.  488.  See  Chap. 
X.",  post. 

•  Wainwright  v.  Miller,  [1897]  2 
Ch.  255.  Re  Gage,  [1898]  1  Ch.  498. 


AND   ITS   COROLLARIES.  209 

so  a  term  for  years  beginning  within  those  limits  is  good  like- 
wise. Thus  a  devise  of  a  term  for  twenty-five  years  to  begin 
on  the  death  of  a  person  living  at  the  testator's  decease  is 
good,  although  followed  by  a  limitation  bad  for  remoteness.1 
So  easements  and  other  rights  in  the  land  of  other  persons  may 
be  made  terminable  at  remote  periods.2 

§  232  a.  If  an  estate  is  given  to  A.  for  life,  remainder  to 
his  children  as  joint  tenants  for  life,  the  remainder  is  valid.3 

§  233.  One  qualification  must  be  made  of  the  statement  in 
§  232.  When  there  is  a  good  absolute  gift,  and  the  settlor 
or  testator  goes  on  in  a  second  clause  to  modify  the 
gift  by  directing  that  the  donee  shall  have  a  particular 
estate,  with  a  limitation  over  to  his  children,  issue,  etc., 
and  this  latter  limitation  is  bad  for  remoteness,  the  whole 
modifying  clause  is  disregarded,  and  the  donee  takes  the  ab- 
solute interest.4 

§  234.  Although  the  doctrine  that  an  estate  is  not  too  remote 
if  it  begins  within  the  limits  prescribed  by  the  Rule  against 
Perpetuities  is  recognized  on  both  sides  of  the  Atlantic,  and 
although  an  opposite  view  would  conflict  with  the  funda- 
mental principles  which  govern  questions  of  remoteness,  yet 
there  are  some  American  cases  which  are  not  conformable  to 
this  doctrine,  and  which  therefore  should  be  examined.  In 
some  of  them,  absolute  interests  have  been  said  to  violate 

See  Boughton  v.  James,  1  Coll.  26,  trust  of  the  term  was  void,  and  on 

46-  that    ground    he    disapproved    Re 

1  Gooding   v.   Read,   21   Beav.  Watson  and  Re  Wise,  supra.    See 

478;  4  De  G.  M.  &  G.  510.    Re  1  Jarm.  Wills  (6th  ed.)  301,  308. 

Watson,   [1892]    W.    N.    192.    Re  On  such  discretionary  trusts,  see 

Wise,  [1896]  1  Ch.  281.  Cf .  Rhodes's  §  246,  post. 

Estate,  147  Pa.  227.    But  see  John-  »  See  §  17,  ante;  §  279,  post. 

eton's  Estate,  185  Pa.  179,  §  249  6,  *  In    re    Roberts,    19    Ch.    D. 

post;    O'Brien's    Estate,    24    Viet.  520.    In  re  Price,  8  Tasmanian,  95. 

L.  R.  360.    In  In  re  Blew,  [1906]  Mareden,   Perp.   178.     See  In  re 

1   Ch.   624,   Warrington,   J.,   said  Stevens,   [1912]  Viet.    L.   R.    194; 

that  when  the  trustees  of  a  term  §  207,  ante. 

exceeding  twenty-one  years  had  a  4  These  cases  are  considered  in 

discretion  to  apply  the  income,  the  Chap.  XIII.,  post. 


210  THE   RULE  AGAINST  PERPETUITIES 

the  Rule  against  Perpetuities,  although  beginning  within 
lives  in  being;  in  others,  life  interests  beginning  in  like  manner 
have  been  said  to  be  too  remote.  They  will  be  taken  up  in 
succession. 

§  234  a.  These  decisions  and  dicta  are  generally  sporadic, 
and  are  inconsistent  with  or  are  overruled  by  cases  in  the  same 
jurisdictions  in  which  they  have  occurred.  In  Maryland  alone, 
a  considerable  series  of  cases  seems  to  have  established,  for  the 
time  at  least,  a  doctrine  contrary  to  the  Common  Law.1  There 
will  here  be  taken  up  in  succession:  (I.)  Cases  generally  in 
which  absolute  interests  beginning  within,  or  at  the  end  of, 
lives  hi  being  have  been  said  or  held  to  violate  the  Rule  against 
Perpetuities.  (II.)  Cases  generally  in  which  life  interests 
beginning  within,  or  at  the  end  of,  lives  hi  being  have  been 
said  or  held  to  violate  the  Rule.  (III.)  The  series  of  Mary- 
land cases. 

§  235.  (I.)  Coses  where  an  absolute  interest  beginning  within, 
or  at  the  end  of,  lives  in  being  has  been  said  or  held  to  violate 
the  Rule  against  Perpetuities.  Slade  v.  Patten.2  In  this  case 
there  was  an  immediate  devise  to  trustees  in  trust  for  children 
and  their  heirs,  and  the  devise  was  held  to  violate  the  Rule 
against  Perpetuities.  The  Court  said:  "If  the  trustees  are  to 
hold  the  estate  for  the  four  daughters  and  the  heirs  of  the 
daughters,  then  the  trust  is  void  as  creating  a  perpetuity." 
The  decision  was  that  the  daughters  took  a  legal  fee;  un- 
doubtedly it  should  have  been  that  they  took  an  equitable  fee. 
But  as  they  could  have  immediately  demanded  a  conveyance 
from  the  trustees,  the  practical  difference  was  small.  But  the 
Court  said  that  the  trust  could  not  be  considered  as  for  the 
daughters  for  life,  remainder  for  their  heirs  in  fee,  and  that 
even  if  this  were  the  construction,  it  would  "create  a  per- 
petuity, because  it  was  possible  that  they  might  have  heirs 
unborn  at  the  testator's  death,  and  in  whom  the  estate  would 
not  vest  within  lives  in  being  and  twenty-one  years  and  a 
fraction  afterwards."  But  the  daughters'  heirs  must  take  the 
1  But  see  §  245  I,  post.  »  68  Me.  380. 


AND   ITS   COROLLARIES.  211 

fee  on  the  daughters'  death,  and  the  daughters  must  be  alive 
(or  begotten)  at  the  testator's  death.1 

§  236.  In  this  opinion  very  different  things  were  con- 
founded. There  are  two  distinct  rules  of  law,  by  the  joint 
action  of  which  the  tying  up  of  estates  is  prevented.  1.  Es- 
tates cannot  be  made  inalienable.  2.  Future  estates  cannot 
be  created  beyond  the  limits  fixed  by  the  Rule  against  Per- 
petuities. If  land  is  devised  to  A.  in  trust  for  B.  and  his  heirs, 
the  Rule  against  Perpetuities  has  no  application.  The  trust  is 
perfectly  good.2  B.'s  equitable  fee  is  no  more  objection- 
able because  it  may  last  forever  than  is  a  devise  of  a  legal  fee 
simple;  that,  too,  may  last  forever.  B.  may  at  once  demand 
from  the  trustee  a  conveyance  of  the  legal  fee.3  An  equitable 
fee  cannot  be  made  inalienable.4 

§  237.  But  Slade  v.  Patten,  though  cited  as  authority  in 
Hamlin  v.  Mansfield?  was  in  Pulitzer  v.  Livingston,*  after 
full  and  elaborate  discussion,  overruled.7 

§  237  a.  In  Pennsylvania  Co.  v.  Price  8  property  was  con- 
veyed to  a  trustee  in  trust  for  eight  children,  their  heirs  and 
assigns,  with  an  option  in  the  trustee,  his  heirs  and  assigns, 
to  convey  the  principal  to  the  cestuis  que  trust.  It  was  held 
by  the  Court  of  Common  Pleas  of  Philadelphia  that  the  cestuis 
que  trust  had  the  right  to  a  conveyance;  that  is,  the  Court  held 
the  attempt  to  restrain  the  alienation  of  the  estate,  by  giving  the 
trustee,  his  heirs  and  assigns,  an  option  to  withhold  it,  to  be 
void.  This  was  certainly  correct.  The  language  of  the  Court  is 
unfortunate,  however,  as  lending  countenance  to  the  idea  that 
an  equitable  fee  is  obnoxious  to  the  Rule  against  Perpetuities. 

1  The  case  was  criticised  in  14  Perpetuities,  see  §§  121  e,  et  seq., 

Am.  Law  Rev.  237.  ante. 

1  See  Harlow  v.  Cowdrey,  109          4  See   §  119,   ante;   Gray,   Re- 
Mass.  183;  O'Rourke  t;.  Beard,  151  straints    on    Alienation    (2d    ed.), 
Mass.  9,  11;  Cooper's  Estate,  150  §§  105  et  seq. 
Pa.  576,  585;  Hart  v.  Seymour,  147  •  88  Me.  131,  138. 
111.  598,  613,  614.  «  89  Me.  359. 

1  On  a  local  doctrine  in  Massa-  T  See,  however,   Towle  v.  Doe, 

chusetts  and  Illinois,  and  its  con-  97  Me.  427;  §  245  a,  post. 
nection     with     the     Rule    against  8  7  Phila.  465. 


212  THE  RULE  AGAINST  PERPETUITIES 

§  237  6.  In  Williams  v.  Herrick 1  a  testator  gave  all  his 
estate  to  trustees  in  trust  to  erect  a  "brick  block"  on  his  land 
to  be  forever  known  as  the  "A.  G.  &  A.  W.  Olney  Block," 
and  to  pay  the  rents  and  income  among  such  of  his  heirs  as 
should  present  satisfactory  proof  of  their  claims  to  the  trus- 
tees; vacancies  among  the  trustees  to  be  filled  by  the  Court  of 
Probate  "ever  thereafter."  The  heirs  and  next  of  kin  of  the 
testator  brought  a  bill  in  equity  to  have  the  testator's  estate 
conveyed  to  them,  and  the  Court  overruled  a  demurrer  to  the 
bill,  rightly  it  would  seem.  But,  as  in  Pennsylvania  Co.  v. 
Price,  the  Court  uses  language  about  "perpetuities,"  which 
had  better  have  been  avoided. 

§  237  c.  In  Bigelow  v.  Cody 2  a  testator  directed  that  his 
land  should  be  taken  charge  of  by  his  executrix;  that  the 
income  should  be  equally  divided  between  his  wife  and  his 
three  children;  that  "in  case  of  death  of  either  of  the  four 
above-named  heirs  it  shall  go  (their  share)  to  the  heirs  of  the 
deceased  heir,  if  they  have  any;  if  not,  it  shall  be  equally 
divided  between  my  remaining  heirs  above  mentioned  and 
their  heirs  forever,  share  and  share  alike;"  that  if  his  wife 
"dies  leaving  no  heir  of  mine,  then  her  share  (one-fourth) 
shall  go  to  my  heirs  and  their  heirs  forever,  share  and  share 
alike;"  and  that  in  case  of  the  death  or  inability  of  the  ex- 
ecutrix, the  judge  of  the  Probate  Court  "shall  from  time  to 
time  and  for  all  time  to  come,  appoint"  a  successor.  The 
testator's  wife  and  children  brought  a  bill  for  partition.  As 
the  Rule  in  Shelley's  Case  is  in  force  in  Illinois,  it  would  seem 
that  no  one  was  interested  in  the  land  except  the  plaintiffs, 
and  that  therefore  the  Court  was  right  in  overruling  a  de- 
murrer to  the  bill.  The  inaccurate  language  of  the  Court  as 
to  the  Rule  against  Perpetuities  is  to  be  regretted.3 

§  237  d.  The  reason  why  a  trust  which  is  not  charitable  and 

1  19  R.  I.  197.  case  of  Hart  t>.  Seymour,  147  111. 

»  171  111.  229.  598,  613,  614.     See  Davis  v.  Wil- 

*  This  language  is  the  more  mat-  Hams,   85  Tenn.   646;   Johnson  t;. 

ter  of  surprise,  because  of  the  recent  Preston,  226  111.  447. 


AND   ITS   COROLLARIES.  213 

which  has  no  definite  cestuis  que  trust,  —  for  instance  a  trust  to 
keep  a  grave  in  repair  —  is  invalid,  is  because  there  is  no  per- 
son who  has  a  right  to  enforce  it  and  not  because  it  violates 
the  Rule  against  Perpetuities,  for  it  does  not  violate  the  Rule, 
although  it  has  been  sometimes  said  that  it  does.1 

§  238.  (II.)  Cases  where  a  life  interest  beginning  within,  or 
at  the  end  of,  lives  in  being  has  been  held  to  violate  the  Rule  against 
Perpetuities.  In  Smith  v.  Dunwoody 2  the  question  was  whether 
a  very  illiterate  and  confused  will  should  be  admitted  to  pro- 
bate. The  Court,  why  is  not  very  apparent,  considered  the 
legality  of  the  provisions  of  the  will.  There  was  a  gift  of  the 
income  of  the  testator's  estate  to  certain  persons  named  and 
their  heirs.  It  was  held  that  this  was  a  gift  of  the  corpus. 
The  executors  were  charged  to  pay  annually  to  each  of  the 
testator's  slaves  $5,  and  $100  to  some  Baptist  minister,  and  to 
keep  the  chapel  on  the  estate  in  repair;  and  the  testator  also 
directed  that  every  tenth  slave  born  after  his  death  should  be 
emancipated.  All  these  provisions  were  held  bad,  on  the  ground, 
it  is  said,  that  they  were  too  remote.  So  far  as  the  gift  of  $5 
a  year  was  to  slaves  unborn  at  the  testator's  death  it  was,  hi 
part,  at  least,  bad,  but  so  far  as  it  was  to  slaves  then  living  it 
seems  good.  The  gift  was  not  to  a  class,  but  to  each  slave  sep- 
arately; and  the  gift  to  one  was  not  affected  by  the  validity 
or  invalidity  of  the  gift  to  any  other.3  Very  likely,  however, 
no  such  bequest  to  a  slave  would  have  any  legal  validity.4 

§  239.  In  Smith's  Appeal 5  property  was  devised  to  trustees 
in  trust  to  pay  the  income  to  B.  for  life,  and  on  her  death  as 
B.  might  by  will  appoint.  B.  appointed  to  trustees  in  trust 
for  her  children  for  life  without  liability  for  their  debts,  and 
directed  that  on  the  death  of  each  child  its  share  should  go 
over.  All  B.'s  children  were  born  before  the  testator's  death. 

1  E.  g.  Hartson  v.  Elden,  50  was  finally  held  void  on  the  ground 

N.  J.  Eq.  522.  See  App.  H,  §§  898  that  it  was  repugnant  to  the  gift 

et  seq.,  post.  of  the  property.  See  §  228,  note, 

1  19  Ga.  237.  ante. 

»  See  §  389,  post.  '  88  Pa.  St.  492. 

4  The  direction   to   emancipate 


214  THE  RULE  AGAINST  PERPETUITIES 

The  Court  held  the  appointment  bad,  because  B.  might  have 
had  children  born  after  the  testator's  death.  B.  might  cer- 
tainly have  had  such  children,  but  all  B.'s  children,  whether 
born  before  or  after  the  death  of  the  testator,  would  have  taken 
at  B.'s  death,  and  therefore  the  life  estates  to  the  children 
were  good.1  Smith's  Appeal,  on  this  point,  has  been  overruled 
by  Lawrence 's  Estate.2 

§  240.  In  Gardette's  Estate 3  P.  devised  property  to  C. 
for  life,  and  on  her  death  to  her  children  and  issue  in  such 
shares  and  for  such  estates  as  she  should  by  will  appoint.  C. 
appointed  to  trustees  in  trust  for  her  daughter  J.  for  life,  with- 
out power  of  anticipation.  J.  was  not  born  until  after  P.'s 
death.  The  Orphans'  Court  of  Philadelphia  held  that  the 
appointment  was  void.  But  as  J.'s  life  estate  began  on  the 
death  of  C.,  the  appointment  would  seem  to  have  been  clearly 
good.  The  restraint  on  anticipation  was  either  good,  or  if  it 
was  too  remote,  it  should  have  been  disregarded.4 

§  241.  In  Thomson  v.  Livingston 5  property  subject  to  a 
power  was  appointed  to  trustees  to  pay  the  income  to  A.,  who 
was  not  born  at  the  time  of  the  creation  of  the  power,  till  he 
reached  forty-five,  and  then  to  transfer  the  capital  to  him  abso- 
lutely, but  if  he  died  before  that  age,  to  transfer  the  property 

1  As  all  B.'B  appointees  were  in  pointment,   the  whole  interest  in 

fact  born  in  the  testator's  lifetime,  what,   under   the   appointment   of 

and  as  the  share  of  each  went  over  B.,  they  took  a  life  interest,  and 

independently,  not  only  were  the  the  question  of  the  validity  of  the 

life  estates  good,  but  the  gifts  over  life  interests  may  have  therefore 

were  good  also.    See  §§  395,  523  et  less  attracted  the  attention  of  the 

seq.,  post.  Court. 

If  any  of  the  appointees  had  *  136   Pa.  354,  366.     See   also 

been  born  after  the  testator's  death,  Coggins'  Appeal,   124  Pa.   10,  30; 

the  restraint  on  the  alienation  of  Ronckendorff's  Estate,  11  Pa.  C.  C, 

their   shares   was   either   good   or  447;  Owen's  Pet.,  3  Pa.  Dist.  C. 

ought   to   have  been   disregarded.  328. 

See  the  following  section.  »  13  W.  N.  C.  (Pa.)  315;  8.  c. 

It  is  to  be  observed  that  the  16  Phila.  264. 

effect  of  holding  the  gifts  over  to  be  *  See  §§  432-438,  post. 

void  was  to  give  the  children  of  B.,  •  4  Sandf .  S.  C.  539. 
under  a  provision  in  default  of  ap- 


AND    ITS   COROLLARIES.  215 

to  his  next  of  kin.  The  Court  held  the  whole  appointment 
void.  No  opinion  is  reported,  but  the  reporter  says  one  was 
given  orally,  and  went  upon  the  ground  stated  in  the  head- 
note,  which  is  "that  the  appointment  was  void  because  it 
suspended  the  absolute  ownership  of  the  personalty  bequeathed 
beyond  the  period  allowed  by  law  before  the  Revised  Statutes." 
The  gift  over  was  bad,  but  the  appointment  of  the  equitable 
interest  to  A.  until  he  reached  forty-five,  if  he  lived  so  long, 
was  an  interest  beginning  within  the  required  limits,  and 
therefore  good.  The  expression  about  "suspending  the  abso- 
lute ownership"  is  borrowed  from  the  Revised  Statutes,  and 
is  foreign  to  the  conceptions  of  the  common  law.1 

§  242.  In  Thorndike  v.  Loring 2  a  fund  was  given  by  will 
to  trustees  to  accumulate  for  fifty  years,  and  then  to  pay  over 
to  those  who  would  be  entitled  to  the  testator's  estate  if  he 
had  then  died  intestate.  The  short  memorandum  of  the 
opinion  says:  "The  gift  to  trustees  was  void  for  remoteness. 
.  .  .  The  gift  being  void  in  law,  the  gift  by  the  residuary 
clause  takes  effect,  and  the  residuary  legatees  are  entitled  to 
distribution."  The  residuary  legatees  were  certainly  entitled 
to  distribution,  but  the  mode  by  which  that  result  was  reached 
is  perhaps  not  quite  correctly  stated.  The  term  for  fifty  years 
was  not  too  remote,  although  the  gift  over  was.3  The  residu- 
ary legatees,  therefore,  took  the  property  subject  to  the  term, 
and  having  the  whole  interest  they  could  stop  the  accumulation 
and  demand  a  conveyance  at  once.4  The  same  comment  is  ap- 
plicable to  Fosdick  v.  Fosdickf  which  is  discussed  in  the  fol- 
lowing sections  on  another  point.  It  may  also  be  fairly  urged 

1  See  §  748,  post.     The  case  is  &  G.  510.    Re  Watson,  [1892]  W. 

so  imperfectly  reported,  that  it  is  N.   192.     Re  Wise,   [1896]   1    Ch. 

not  clear  what  A.  took,  the  appoint-  281.    Rhodes's  Estate,  147  Pa.  227. 

ment  over  on  his  reaching  forty-  Johnston's   Estate,    185    Pa.    179. 

five  being  invalid.    If  the  fee  came  See  Andrews  v.   Lincoln,   95   Me. 

to  him,  then  as  he  had  the  entire  541;  O'Brien's  Estate,  24  Viet.  L. 

equitable  interest  he  could  compel  R.  360.     See  §  232,  ante. 
an  immediate  transfer  to  himself.  4  See  §  671,  post. 

1  15  Gray,  391.  *  6  Allen,  41. 

*  Gooding  v.  Read,  4  De  G.  M. 


216  THE   BULB   AGAINST   PERPETUITIES 

in  support  of  the  decision  in  Thorndike  v.  Loring  that  the 
trust  was  created  solely  for  the  purpose  of  making  an  invalid 
gift,  and  that  its  sole  object  being  illegal  the  whole  trust 
failed.1 

§  243.  In  Fosdick  v.  Fosdick 2  a  testatrix  gave  the  residue 
of  her  estate  to  trustees  in  trust  to  accumulate  the  income 
until  her  youngest  living  grandchild  should  reach  twenty- 
one,  and  then  "to  pay  over  annually  to  my  grandchildren, 
in  equal  shares,  all  the  annual  interest  and  income  of  said 
trust  fund  or  estate."  She  then  directed  to  whom  each  grand- 
child's share  of  income  should  be  paid  in  case  of  its  death, 
and  that  the  interest  and  income  should  continue  to  be  paid 
during  the  life  of  the  last  survivor  of  the  grandchildren,  and 
on  the  death  of  such  last  survivor  she  gave  the  property  over. 
It  is  clear  that  the  equitable  life  interests  of  the  grandchildren 
must  vest  within  twenty-one  years  after  lives  in  being  at  the 
death  of  the  testator,  and  they  therefore  seem  to  be  good,  al- 
though the  gifts  over  on  the  death  of  the  grandchildren  are  of 
course  bad.  But  the  Court  held  the  life  estates  of  the  grand- 
children to  be  void,  for  a  singular  reason.  They  say  that  no 
portion  of  the  annual  interest  and  income  "will  or  can  become 
payable  to  any  one  of  the  legatees  until  the  end  of  one 
year  after  the  fund  itself  is  created  and  established;  for  no 
annual  interest  can  before  that  time  have  accrued  upon  it. 
And  until  that  time  it  is  impossible  that  any  part  of  such 
income  can  become  legally  vested  in  any  one  to  whom  any 
portion  of  it  is  bequeathed,  because  until  the  arrival  of  that 
time  it  is  and  must  remain  uncertain  who  are  the  legatees  who 
will  then  be  entitled  to  receive  it;  for  according  to  the  provisions 
in  the  will  the  share  or  portion  which  each  one  of  the  grand- 
children would,  if  living,  be  entitled  to  receive  is,  upon  his  or 
her  death,  bequeathed  and  to  be  paid  either  to  the  surviving 
brothers  and  sisters,  or  the  surviving  wife  or  husband,  or 

1  A  like  decision  in  a  like  case          *  6  Allen,  41. 
was  made  in  Baker  v.  Stuart,  28 
Ont.  439. 


AND   ITS   COROLLARIES.  217 

the  children,  or  the  appointees  under  the  will  of  the  deceased, 
as  certain  particularly  enumerated  and  prescribed  events  and 
contingencies  shall  or  shall  not  occur.  Thus  it  may  happen 
that  the  earliest  possible  time  when  any  portion  of  the  interest 
or  income  of  the  accumulated  fund  can  become  vested  in  any 
one  of  the  legatees  may  be  twenty-two  years  after  the  birth  of 
a  child  born  after  the  death  of  the  testatrix;  and  the  end  of  this 
term  of  twenty-two  years  may  be  more  than  twenty-one  years 
and  ten  months  after  the  extinction  of  all  said  lives  in  being, 
that  is,  after  the  death  of  all  of  said  grandchildren  who  were 
living  at  the  time  of  the  decease  of  the  testatrix."1 

§  244.  In  Lovering  v.  Worthington 2  the  Court  say  that  in 
Fosdick  v.  Fosdick  "property  was  bequeathed  to  trustees  to 
be  accumulated  for  a  term  which  the  Court  held  to  be  longer 
than  the  period  prescribed  by  the  Rule  against  Perpetuities." 
But  this  is  not  so;  the  period  during  which  the  property  was 
to  be  accumulated  was  only  a  life  in  being  and  twenty-one 
years.  The  fact  that  in  Fosdick  v.  Fosdick  the  life  interests  of 
the  grandchildren  did  not  begin  till  twenty-one  years  after  a 
life  in  being  did  not  make  them  bad.  As  appears  by  the  cases 
cited  §  232,  ante,  it  has  been  repeatedly  held  in  Massachusetts, 
as  elsewhere,  that  a  life  interest  beginning  at  the  end  of  a 
life  in  being  is  good.  Such  life  interest  may  extend  beyond 
twenty-one  years,  and  yet  there  has  never  been  a  suggestion 
that  that  part  which  fell  beyond  twenty-one  years  is  bad,  and 
Gooch  v.  Gooch 3  is  a  distinct  authority  to  the  effect  that  a 
life  interest  beginning  at  the  expiration  of  lives  in  being  and 
twenty-one  years  is  good.  Neither  is  it  any  objection  that 
the  life  interest  is  merely  an  equitable  one,  entitling  the  cestui 
que  trust  only  to  the  receipt  of  the  income;  for  this  has  been 
so  in  the  great  majority  of  the  cases  where  life  interests  to 
unborn  persons  have  been  supported.4 

§  245.  Nor  does  the  decision  in  Fosdick  v.  Fosdick  purport 
to  rest  upon  any  of  these  grounds,  but  because  "the  'annual' 

1  6  Allen,  41,  46.  •  3  De  G.  M.  &  G.  366,  383. 

*  106  Mass.  86,  88.  •  See  cases  cited,  §  232,  ante. 


218  THE   RULE   AGAINST   PERPETUITIES 

interest  and  income  of  [the  fund]  is  to  be  'annually'  paid  over 
to  and  received  by  the  respective  legatees."  The  adjective 
"annual"  adds  absolutely  nothing,  in  this  connection,  to  the 
words  "interest  and  income."  Neither  the  amount  to  be  re- 
ceived by  the  cestuis  que  trust,noT  the  time  nor  mode  of  receiving 
it,  is  in  the  least  affected  by  the  use  of  this  word.  Were  it 
stricken  out  the  sense  would  not  be  in  any  way  changed.  The 
effect  attributed  to  this  expression  in  rendering  the  gift  too 
remote  must  lie  in  the  words  "annually  paid  over  and  received." 
The  utmost  force  that  can  be  attributed  to  the  word  "annually" 
is  that  the  trustee  need  not  pay  over  the  income  more  than 
once  a  year.  As  soon  as  received  by  the  trustee  it  belongs  to 
the  life  tenant.  Should  the  life  tenant  die  in  the  course  of  the 
year,  any  dividends  or  interest  received  before  his  death  be- 
long to  him.  The  fact  that  the  life  tenant  may  not  be  alive  at 
the  end  of  a  year,  to  which  the  opinion  refers,  is  nothing  more 
than  may  happen  in  any  life  estate,  and  will  not  deprive  the 
life  tenant  of  income  accrued  before  his  death.  The  Court 
treat  the  gift  as  if  it  had  been  "to  such  of  certain  persons  as 
are  living  at  the  end  of  one  year  after  my  youngest  grandchild 
reaches  twenty-one,  and  so  on  at  the  end  of  every  year  so  long 
as  any  one  of  my  grandchildren  is  alive."  Such  a  gift  would 
have  been  too  remote,  for  it  would  have  been  contingent  on 
the  condition  precedent  of  a  legatee  being  alive  twenty-two 
years  after  lives  in  being;  but  that  was  not  the  gift  in  Fosdick 
v.  Fosdick.  The  gift  there  was  free  from  any  condition  pre- 
cedent, and  was  vested  in,  and  (if  that  be  material)  immedi- 
ately alienable  by  the  grandchildren.  If  a  life  interest  in  any 
property  is  to  be  considered  contingent  except  as  to  those  in- 
stalments of  income  which  have  actually  been  received,  then 
all  that  part  of  a  life  estate  beginning  at  the  determination  of  a 
life  in  being  which  falls  beyond  twenty-one  years  from  its  com- 
mencement is  bad  for  remoteness;  but  in  the  numerous  cases  in 
which  such  life  estates  have  been  held  good  without  qualifica- 
tion, no  such  suggestion  has  ever  been  heard.  It  is  confidently 
submitted  that  Fosdick  v.  Fosdick  was  wrongly  decided. 


AND   ITS   COROLLARIES.  219 

§  245  a.  In  Towle  v.  Doe1  a  testator  gave  the  residue  of 
his  estate  to  his  wife  for  life  and  on  her  death  "to  my  children, 
viz.:  Wm.  M.  Towle  and  his  heirs,  one-fourth  part  to  be  in- 
vested by  my  executor  in  United  States  bonds  or  State  bonds, 
and  the  interest,  deducting  expenses,  paid  over  to  said  Wm.  M. 
Towle  and  his  children  so  long  as  they  live,  and  then  the 
principal  divided  to  his  or  their  heirs."  The  Court  held  that 
Wm.  M.  Towle  took  a  fee  subject  to  a  modifying  clause, 
and  that  as  the  modifying  clause  created  interests  which  were 
in  part  too  remote,  such  clause,  in  accordance  with  the  doc- 
trine laid  down,  Chapter  XIII.,  post,  must  be  rejected.  This, 
though  rather  an  extreme  application  of  that  doctrine,  may  be 
accepted,  but  the  Court  seems  to  have  thought  that  not  only 
the  final  gift  to  the  heir  or  heirs  of  Towle  and  his  children  was 
void,  which  was  enough  to  support  the  decision,  but  also  that  the 
trust  for  Towle  and  his  children  during  their  lives  was  bad. 
This,  it  is  respectfully  submitted,  was  erroneous. 

§  245  6.  Troutman  v.  De  Boissiere.2  Land  was  conveyed 
by  deed  to  trustees  to  hold  in  trust  to  provide  a  home  and 
school  for  the  orphan  children  of  deceased  Odd  Fellows  of  the 
State  of  Kansas.  The  Supreme  Court  of  Kansas,  by  four  judges 
to  three,  held  that  this  was  not  a  charitable  trust  and  was  void. 
Whether  this  was  a  charitable  trust  is  not  a  question  to  be  dis- 
cussed here.  If  it  was  not  charitable,  it  was  certainly  void, 
because  there  was  no  cestui  que  trust  who  had  a  standing  in 
Court  to  enforce  it.3  But  the  Court  seemed  to  think  the  case 
had  something  to  do  with  the  Rule  against  Perpetuities.  They 
say  (p.  4),  "That  the  foregoing  deed  is  void  on  its  face,  unless 
the  trust  it  attempts  to  create  is  a  public  charity,  is  beyond 
controversy,  for  it  violates  the  rule  against  perpetuities  of 
title  in  estates."  4 

1  97  Me.  427.  et  seq.,  post;  15  Harv.  Law  Rev. 

1  66  Kan.  1.  509. 

1  This  is  the  familiar  and  well-  4  Mr.  Justice  Cunningham,  in 

established  doctrine  of  Morice  v.  his  dissenting  opinion,  expounds 

Bishop  of  Durham,  9  Ves.  399;  10  lucidly  the  true  nature  of  the  Rule 

Ves.  521.  See  App.  H,  5  894  against  Perpetuities,  and  shows 


220  THE   RULE  AGAINST  PERPETUITIES 

§  245  c.  (III.)  The  Maryland  cases  in  which  life  estates  to 
unborn  persons  and  equitable  fees  have  been  said  or  held  to  be 
void  as  violating  the  Rule  against  Perpetuities. 

(1)  Barnum  v.  Barnum  l  (1866).    Here  there  was  a  devise 
to  trustees  in  trust  for  children  and  their  heirs,  with  a  direc- 
tion that  the  property  devised  should  be  permanently  carried  on 
as  a  hotel,  and  (as  the  Court  interpreted  the  will),  if  the  testa- 
tor's views  on  this  point  were  disappointed,  judicially  or  other- 
wise, he  devised  the  property  over.    The  Court  held  that  the 
trust  for  the   children  was   void,  and   the  "disappointment 
clause"  took  effect.    Though  the  trust  would  seem  to  have  been 
good,  yet  as  it  was  terminable  at  the  will  of  the  cestuis  que  trust, 
it  might  fairly  be  said  that  the  testator's  views  were  disap- 
pointed.   There  is  therefore  no  occasion  to  quarrel  with  the  de- 
cision, but  the  Court,  disregarding  or  overlooking  the  fact  that 
an  equitable  fee  is  alienable,  and  that  the  Rule  against  Per- 
petuities applies  only  to  future  estates,  said  (p.  171):  "In  the 
case  now  under  consideration,  no  question  is  presented  as  to  the 
future  vesting  of  an  executory  estate,  in  order  to  determine 
the  validity  of  the  preceding  one;  but  simply  whether  the 
trusts  of  the  will  require  in  their  execution  a  longer  period 
than  that  prescribed  by  the  Rule  against  Perpetuities,  and, 
therefore,  render  the  property  devised  to  the  trustees  inalien- 
able during  that  time.     If  so,  the  law  denounces  the  devise 
in  trust  as  a  perpetuity,  and  declares  it  void."     And  this 
dictum  has  since  been  carried  out  by  the  Court  of  Appeals 
in  a  series  of  cases  in  the  face  of  difficulties  with  a  courage 
which  extorts  admiration. 

(2)  Deford  v.  Deford2  (1872).    A  testator  devised  property 
to  trustees  to  apply  and  use  the  income  in  the  support,  educa- 
tion, and  maintenance  of  such  granddaughters  as  he  then  had 
or  might  thereafter  have,  or  might  at  any  time  thereafter 
descend  from  any  of  his  children,  for  the  equal  benefit  of  said 
granddaughters  during  their  respective  lives;  said  trust  to  be 

that  the  case  before  the  Court  in  -  26  Md.  119. 

no  way  involved  its  consideration.  *  36  Md.  168. 


AND   ITS   COROLLARIES.  221 

continued  for  the  benefit  of  the  said  granddaughters  so  long 
as  three  at  least  of  them  were  living,  but  no  longer,  and  the 
property  then  to  be  divided  among  the  granddaughters  then 
living,  and  the  heirs  and  distributees  of  such  as  had  previ- 
ously died,  per  stirpes;  the  income  during  the  continuance  of 
the  trust  to  be  divided  between  the  granddaughters  who  might 
be  living,  and  the  child  or  children,  descendant  or  descend- 
ants, of  such  as  might  die  during  said  trust,  leaving  at  the 
time  of  death  any  descendants,  per  stirpes.  As  all  the  grand- 
children must  be  living  at  the  time  of  the  death  of  the  tes- 
tator's children,  it  would  seem  as  if  there  was  here  a  good 
estate  to  all  the  grandchildren,  to  last  during  the  joint  lives 
of  all  the  grandchildren  so  long  as  three  of  them  were  alive. 
The  limitation  over  when  there  are  two  only  of  the  grand- 
daughters alive  was  bad;  so  also,  of  course,  was  any  gift  to 
the  children  of  a  grandchild  or  any  increment  to  the  share  of 
a  grandchild  upon  the  death  of  any  other  without  issue.  In 
fact,  it  seems  as  if  each  grandchild  took  a  good  life  interest, 
and  that  all  modifications  or  divestings  of  it  were  too  remote. 
But  it  was  held  that  as  the  trust  might  continue  beyond 
the  limit  fixed  by  the  Rule  against  Perpetuities  it  was  bad.1 
The  Court  said  they  regarded  Barnum  v.  Barnum  "as  a  bind- 
ing and  conclusive  authority  which  must,  notwithstanding  the 
very  able  argument  of  counsel  to  the  contrary,  control  our 
judgment  in  the  present  case." 

(3)  Goldsborough  v.  Martin 2  (1874)   is  stated  below.3     In 
it  the  language  of  Barnum  v.  Barnum  was  again  cited  with 
approval. 

(4)  Heald  v.  Heald4  (1881).    Here   equitable   life  estates 
to  the  unborn  children  of  the  testator's  son  were,  in  accord- 
ance with  the  general  and  correct  doctrine6  held  to  be  good. 
Barnum  v.  Barnum  was  not  referred  to. 

1   Cf.   Allen   v.  White,    16  Ala.  •  §  397,  post. 

181,   and   Johnston's   Estate,    185  *  56  Md.  300. 

Pa.  179,  §  249  6,  post.  •  See  §  232,  ante. 

1  41  Md.  488. 


222  THE  RULE   AGAINST  PERPETUITIES 

(5)  Albert  v.  Albert1  (1887).     In  this   case   precisely  the 
opposite  decision  was  made,   and   devises  of  equitable  life 
interests  to  the  unborn  children  of  a  son  were  held  to  be  bad. 
Heald  v.  Heald  was  not  referred  to  by  either  counsel  or  Court, 
and  one  would  not  have  hesitated  to  consider  the  decision  in 
Albert  v.  Albert  a  mere  slip  of  the  learned  Court,  were  it  not 
for  the  following  case. 

(6)  Thomas  v.   Gregg 2   (1892).   Here    precisely  the    same 
doctrine  was  laid  down  as  in  Albert  v.  Albert,  although  the 
Court  made  no  reference  either  to  that  case  or  to  Heald  v. 
Heald.    They  say:  "The  Rule  against  Perpetuities  is  as  clear 
and  distinct  as  any  other  rule,  which  has  ever  been  declared 
by  the  Courts.    There  have  sometimes  been  serious  questions 
and  difficulties  in  the  application  of  the  Rule  to  the  terms  of 
particular  instruments;  but  no  difference  of  opinion  exists 
as  to  the  terms  of  the  Rule.    It  is  very  well  expressed  in  Barnum 
v.  Barnum.     'If  an  estate  be  so  limited  as  by  possibility  to 
extend  beyond  a  life  or  lives  in  being  at  the  time  of  its  com- 
mencement, and  twenty-one  years  and  a  fraction  of  a  year 
(to  cover  the  period  of  gestation)  afterwards,  during  which 
time  the  property  would  be  withdrawn  from  the  market,  or 
the  power  over  the  fee  suspended,  it  is  a  perpetuity,  and  void 
as  against  the  policy  of  the  law  which  will  not  permit  prop- 
erty to  be  inalienable  for  a  longer  period.' "    The  Court,  in  fact, 
though  saying  that  no  difference  of  opinion  existed  as  to  the 
Rule,  adopted  a  fundamentally  wrong  conception  of  its  nature 
by  supposing  that  the  period  fixed  by  the  Rule  had  reference 
not  to  the  beginning  but  to  the  end  of  estates.    The  position 
of  the  Court  that  the  decisions  made  in  Albert  v.  Albert  and 
Thomas  v.  Gregg  were  the  necessary  consequence  of  the  doc- 
trine laid  down  in  Barnum  v.  Barnum  seems  incontrovertible, 
but  the  fact  that  such  decisions  were  contrary  not  only  to  their 
own  case  of  Heald  v.  Heald,  but  to  the  decisions  in  other 
common-law  jurisdictions,  would,  one  would  suppose,  have 
led  them  to  question  the  correctness  of  that  doctrine. 

1  68  Md.  352.  *  76  Md.  169. 


AND   ITS   COROLLARIES.  223 

(7)  Missionary  Society  v.  Humphreys1  (1900).     A  devise 
was  made  to  trustees  and  their  successors  to  apply  the  rents 
from  year  to  year  to  a  number  of  incorporated  bodies  and 
boards  for  charitable  purposes.     The  Court  held  the  trust 
void  and  declared  that  they  felt  "constrained  to  adhere  to 
the  law  as  announced  in"  Barnum  v.  Barnwn.     Surely  this 
is  the  reductio  ad  absurdum  of  the  doctrine  of  Barnum  v.  Bar- 
num.   The  Court  expressly  say  that  a  devise  directly  to  the 
charitable  bodies  would  have  been  good.     That  is:  A  devise 
of  a  legal  fee  to  a  charity  is  good,  but  a  devise  of  an  equitable 
fee  violates  the  Rule  against  Perpetuities.2 

(8)  Trinity  Church  v.  Baker3  (1900).    Here  was  a  devise  to 
trustees  upon  trust  to  convey  land  to  a  charitable  organiza- 
tion, upon  its  complying  with  a  condition  precedent,  which 
compliance  might  be  at  a  remote  period.    Remembering  that 
the  doctrine  of  cy  pres  does  not  prevail  in  Maryland,  there 
seems  nothing  to  criticise  in  this  decision,  though  it  is  not 
always  easy  to  follow  the  reasoning  of  the  Court. 

(9)  Lee  v.  O'Donnell*  (1902).   Devise  to  trustees  to  hold  in 
trust  for  A.  for  life,  and  if  he  died  without  issue  living  at  his 
death  (which  happened)  to  hold  for  B.,  C.,  and  D.,  and  their 
heirs  as  tenants  in  common.    Of  course  B.,  C.;  and  D.  were  en- 
titled to  have  the  legal  estate  conveyed  to  them,  but  the  Court 
said:  "If  the  trusts  in  this  case  are  not  to  terminate  at  this 
point  of  time  [the  death  of  A.],  they  must  be  held  as  void,  as 
tending  to  create  a  perpetuity."  5    This  case  brings  out  into 
sharp  relief  the  difference  between  what  it  is  submitted  is  the 
true  rule  and  the  doctrine  as  laid  down  in  the  Maryland  cases, 
the  former  being  that  equitable  fees  are  alienable,  the  latter 
being  that  they  are  void  ab  initio. 

§  245  d.  The  mistake  of  applying  the  Rule  against  Per- 

1  91  Md.  131.  »  91  Md.  539. 

*  See  also  Bennett  v.  Humane  *  95  Md.  538. 

Impartial  Soc.,  91  Md.  10;  Woman's          5  See  Hillen  v.  Iselin,  144  N.  Y. 

Foreign  Missionary  Soc.  v.  Mitchell,  365. 
93   Md.   199;   Baltzell  v.   Church 
Home,  110  Md.  244. 


224  THE  RULE  AGAINST  PERPETUITIES 

petuities  to  the  termination  instead  of  to  the  beginning  of 
an  estate  has  been  committed  by  several  learned  judges  and 
Courts,  for  instance,  by  Sir  John  Leach,  M.  R.,  by  the  Supreme 
Court  of  Maine,  and  by  the  Supreme  Court  of  Pennsylvania, 
but  they  have  all  owned  their  error  or  reversed  their  rulings.1 
Is  it  too  much  to  hope  that  the  Court  of  Appeals  of  Maryland, 
to  which  the  profession  throughout  the  country  has  been  in 
the  habit  of  looking  for  a  sound  exposition  of  the  law  of  property, 
will  follow  their  example?  2 

§  245  e.  Since  the  above  was  written,  that  hope  seems  to  have 
been  fulfilled.  In  Graham  v.  Whitridge3  (decided  in  March, 
1904),  A.  left  a  share  of  the  residue  of  his  estate  to  trustees  in 
trust,  on  the  death  of  his  daughter  B.  without  leaving  issue,  to 
hold  said  share  and  the  income  thereof  to  or  for  such  of  the  tes- 
tator's other  children  or  their  descendants  and  for  such  estates 
as  B.  might  by  will  appoint.  B.  died  childless,  and  by  will 
appointed  the  said  share  to  eight  children  of  her  nephew,  "the 
income  only  therefrom  to  be  paid  respectively  to  each  said  child 
during  her  or  his  natural  life,  with  remainder  over  to  her  or 
his"  descendants.  None  of  the  appointees  had  been  born  at 
the  death  of  the  testator.  The  Court,  repudiating  sub  silentio 
the  doctrine  of  Albert  v.  Albert  and  Thomas  v.  Gregg,  went 
back  to  the  doctrine  of  Heald  v.  Heald,  and  held  that,  although 
the  gifts  over  on  the  death  of  the  nephew's  children  were  bad, 
the  life  interests  of  the  children  themselves  were  good.  The 
case  came  again  before  the  Court  in  June,  1904,4  when  it 
was  held  that  the  nephew's  children  took  legal  and  not  equi- 
table life  interests,8  but  no  suggestion  is  made  that  the  decision 

1  See  §§  232,  235,  239,  ante.  *  Graham  v.  Whitridge,  99  Md. 

*  An  elaborate  and  learned  note  290. 

on  the  Rule  against  Perpetuities  in  6  This  seems  very  questionable. 
Maryland  by  Eli  Frank,  Esq.,  of  The  Statute  of  Uses  does  not  apply 
the  Baltimore  Bar,  will  be  found  to  personalty,  of  which  the  residue, 
hi  the  26th  volume  of  Perkins's  in  part  at  least,  apparently  con- 
edition  of  Maryland  Reports,  p.  sisted.  Besides,  the  property  was 
119.  given  to  trustees  to  hold  to  and  for 

1  99  Md.  248.   See  18  Harv.  Law  such  persons  and  on  such  estates 

Rev.  232.  as  B.  might  appoint.    B.  appointed 


AND   ITS   COROLLARIES.  225 

of  this  question  either  way  would  have  had  any  effect  on  the 
validity  of  the  interests.1 

§  245  /.  The  Supreme  Court  of  Maryland  has  now  taken 
another  step  in  returning  to  the  Common  Law.  In  Brown  v. 
Reeder 2  land  was  conveyed  by  A.  to  B.  and  his  heirs  for  their 
own  use,  but  in  trust  for  A.  for  life,  and  on  his  death  for  C.  and 
his  heirs.  After  the  death  of  A.,  C.'s  heir  brought  a  bill  in 
equity  for  a  conveyance,  and  a  conveyance  was  decreed.  This 
appears  to  put  the  case  on  the  correct  ground.  The  Court 
distinguish  Barnwn  v.  Barnwn  and  the  following  cases,  because 
in  them  there  were  provisions  imposing  active  duties  on  the 
trustee,  but  if  the  cestui  que  trust  has  the  equitable  fee,  such 
provisions  are  void,  without  any  question  of  perpetuities,  as 
being  against  public  policy.3 

§  245  g.  But  again  the  Court  turned  its  back  on  the  Common 
Law.  In  Reed  v.  Mcllvain 4  A.  devised  property  in  trust  for  his 
daughter  B.  for  life;  and  on  B.'s  death  she  had  a  general  testa- 
mentary power;  in  default  of  appointment,  the  property  was  to 
go  to  the  heirs  of  B.  B.  had  four  children,  C.,  D.,  E.,  and  F. 
She  appointed  by  will  one-fourth  of  the  fund  to  C.  in  fee,  an- 
other fourth  to  D.  in  fee,  another  fourth  to  E.  for  life  without 
power  of  anticipation,  and  on  her  death  over,  and  another  fourth 
to  F.  for  life  without  power  of  anticipation,  and  on  her  death 
over.  C.,  D.,  and  E.  were  born  before,  but  F.  after,  A.'s  death. 

A  bill  in  equity  was  brought  by  F.,  alleging  that  the  appoint- 
ment for  her  with  the  limitations  over  violated  the  Rule 
against  Perpetuities  and  was  therefore  void;  that  the  invalidity 
of  the  appointment  for  F.,  if  the  other  appointments  were  up- 

the   property   to   certain   children  the  intentions  of  the  testator  and 

and    directed    "the    income    only  of  the  donee  of  the  power.    See  18 

therefrom  to  be  paid  respectively  Harv.  Law  Rev.  234. 

to  each  said  child"  for  life,  with  x  But  see1  Missionary  Society  v. 

remainder  to  its  descendants.    And  Humphreys,  91   Md.  131,   §  245  c 

no  sooner  had  the  Court  decided  (7),  ante. 

that  the  estates  were  legal,  than  2  108  Md.  653. 

they  had  to  take  them  away  from  *  See  Gray,  Restraints  on  Alien- 

the  legal  owners  and  give  them  to  ation,  §§  105  et  seq. 

new  trustees,  in  order  to  cany  out  *  113  Md.  140. 


226  THE   RULE   AGAINST   PERPETUITIES 

held,  would  defeat  the  whole  scheme  of  B.'s  will;  that  all 
the  appointments  by  her  should  be  declared  void;  and 
that  the  property  should  go  in  default  of  appointment. 
The  defendants,  being  the  other  children  of  B.,  or  their  heirs 
or  representatives,  answered,  denying  the  contention  of  F. 
so  far  as  it  affected  the  appointments  to  such  other  chil- 
dren. The  Court  decreed  the  appointment  to  F.  "to  be  void 
because  in  violation  of  the  Rule  against  Perpetuities"  and 
decreed  the  entire  execution  of  the  power  to  be  void.  The 
defendants  appealed. 

§  245  h.  The  Court  of  Appeals  say  that  the  defendants  con- 
cede F.'s  contention  that  the  appointment  to  F.  "violates  the 
Rule  against  Perpetuities,  and  is  for  that  reason  void,  and  it 
would  seem  no  other  conclusion  could  be  reached." 

The  Court  say  that  the  validity  of  the  appointment  to  F. 
must  be  read  as  if  inserted  in  A.'s  will.1  Assuming  this  to  be 
true,  as  it  probably  is,  and  reading  the  limitation  to  F.  for  life 
as  inserted  in  A.'s  will,  such  limitation,  according  to  the  Com- 
mon Law  and  to  Graham  v.  Whitridge*  is  good,  though  of 
course  the  limitation  over  on  F.'s  death  is  invalid.  But  it  was 
conceded,  strangely,  by  the  defendants  that  the  limitation 
to  F.  for  life  was  invalid,  so  that  the  case  is  no  authority  upon 
the  point.3 

§  245  i.  The  Court  then  refer  to  the  clause  restraining  an- 
ticipation, and  say  this  limitation  transgresses  the  Rule  and 
is  for  that  reason  void.  Whether  a  clause  against  anticipa- 
tion attached  to  a  life  estate  like  F.'s  is  void,  or  can  be 
enforced,  has  been  much  discussed,4  but  it  has  never  been 
suggested  that  such  clause  renders  the  estate  void. 

§  245  j.  The  point  of  the  remoteness  of  F.'s  life  estate  being 
out  of  the  way  by  concession,  the  question  before  the  Court 
was  whether  the  fact  that  the  appointment  of  one  share  was 

1  But  cf.  5§  526  et  seq.,  post.  there    was    a    similar    concession, 

1  99    Md.    248,   see    §    245  e,  §§  394,  394  a,  post. 
ante.  *  See  §§  432  et  seq.,  post. 

*  See  the  history  of  a  case  where 


AND   ITS   COROLLARIES.  227 

invalid  thereby  rendered  bad  the  appointments  of  other  shares, 
good  in  themselves?  The  correctness  of  the  decision  on  this 
point  is  questionable.1 

§  245  k.  The  cases  of  Graham  v.  Whitridge  and  Brown  v. 
Reeder  gave  reason  to  hope  that,  —  borrowing  a  figure  from 
another  profession,  —  what  we  may  call  the  virus  of  Barnum 
v.  Barnum  had  been  eliminated  in  Maryland  from  the  system 
of  property  law,  but  Reed  v.  Mcllvain  showed  that  it  still 
lingered  there.2 

§  245  I.  But  now  again  the  Court  of  Appeals  has  gone  back 
to  the  Common  Law.  In  Gambrill  v.  Gambrill,3  a  testator, 
who  died  in  1856,  gave  property  in  trust  for  his  daughter 
E.  for  life,  and  on  her  death  as  she  might  by  will  appoint. 
E.  married  in  1869  and  died  in  1872,  and  by  will  appointed 
the  property  to  her  husband  for  life,  and  on  his  death  to  G., 
her  only  child,  for  life,  with  limitation  over.  The  Court 
held  that  the  limitation  over  was  of  course  void,  but  that  the 
life  estate  to  G.  was  good.  They  said  that  the  Rule  against 
Perpetuities  "is  applicable  to  limitations  of  either  legal  or 
equitable  estates  in  either  real  or  personal  property.  It  relates 
to  the  commencement  of  future  interests,  and  not  to  their  dura- 
tion, and  it  is  therefore  immaterial  whether  the  estate  limited 
is  in  fee,  for  life,  or  for  years."  They  rely  on  Heald  v.  Heald  and 
Graham  v.  Whitridge.  They  disapprove  of  Thomas  v.  Gregg 
and  Reed  v.  Mcllvain.  They  say  that  in  those  cases  "the  prin- 
ciple of  the  Barnum  Case  was  construed  and  applied  as  con- 
firming the  duration  of  a  trust  within  a  life  or  lives  in  being  and 
twenty-one  years  thereafter,  and  not  as  merely  restricting  the 
future  vesting  of  an  estate  within  that  period.  This  theory 
of  the  rule  is  not  in  accord  with  its  purpose  and  effect  as  de- 
fined in  the  earliest  decisions  of  this  court  on  the  subject  and  in 
its  statement  in  the  recent  cases  of  Levenson  v.  Manly,4  Starr 

1  See  §  537,  post.  »  122  Md.  563. 

•  Cf.  Levenson  v.   Manly,  119          *  119  Md.  517. 
Md.  517;    Lyon   v.  Safe   Deposit 
Co.,  120  Md.  514. 


228  THE   RULE   AGAINST  PERPETUITIES 

v.  Starr  M.  P.  Church,1  and  Hollander  v.  Central  Metal  Co.* 
as  well  as  in  the  cases  of  Heald  v.  Heald  and  Graham  v.  Whit- 
tridge,  to  which  we  have  more  particularly  referred.  As  we 
adhere  to  the  principle  of  the  rule  as  there  expressed,  and  find 
it  controlling  in  the  present  case,  we  must  hold  that  this  [lim- 
itation for  the  life  of  G.]  is  not  in  violation  of  the  Rule  against 
Perpetuities." 

§  246.  Equitable  life  estates  beginning  within  the  limits 
of  the  Rule  against  Perpetuities  are  good ; 3  but  suppose,  as, 
for  instance,  to  save  property  from  creditors,  that  it  is  given  to 
A.  and  his  heirs  in  trust  to  pay  the  income  to  B.  for  life,  and 
on  B.'s  death  to  pay  the  income  among  such  of  B.'s  (unborn) 
children  during  their  lives  as  the  trustee  and  his  heirs  may  in 
his  or  their  discretion  think  fit,  or  at  his  or  their  discretion  to 
add  the  income  to  the  principal.  Here,  in  order  to  give  any  in- 
terest to  any  child,  or  in  order  that  any  sum  should  be  added 
to  the  principal,  the  trustee  and  his  heirs  must  exercise  his  or 
their  discretion  to  that  end;  the  exercise  of  such  discretion  is  a 
condition  precedent,  and  as  that  discretion  may  not  be  exer- 
cised in  that  way  till  too  remote  a  period,  perhaps  the  whole 
gift  upon  B.'s  death  is  void.4  And  so,  even  if  there  is  no  dis- 
cretion to  add  the  income  to  the  principal,  but  only  a  discretion 
to  distribute;  for  though  the  whole  class  have  a  vested  right, 
yet  the  share  of  each  member  depends  upon  the  prior  exercise 
of  discretion  by  the  trustee.5  Perhaps  such  a  gift  to  unborn 
children  may  be  held  good  as  a  gift  to  them  in  equal  shares, 
the  discretion  to  modify  the  amount  of  the  shares  and  to  add 
any  part  of  the  income  to  the  principal  being  rejected.6  This 
suggestion  cannot  be  accepted  in  all  cases.  To  reject  a  modi- 
fication, there  must  be  an  independent  gift,7  and  often  there 
is  none  such.  If  the  trustee  can  pay  over  the  income  at  such 

1  112  Md.  171,  182.  Moore,  6  Jones,  Eq.  132,  discussed, 

»  109  Md.  131,  157.  §  396,  post. 

1  See  cases  cited,  §  232,  ante.  •  See    §    439,    post;     1     Jarm. 

4  See  Andrews    v.   Lincoln,    95  Wills  (6th  ed.)  308. 

Me.  641.     But  see  §  410  o,  post.  J  §  431,  post. 
'  See  also  the  case  of  Moore  v. 


AND   ITS   COROLLARIES.  229 

time  as  he  sees  fit,  that  time  may  be  too  remote,  and  therefore 
the  discretion  may  be  void.1  But  suppose,  as  may  often  be 
the  case,  the  trust  is  to  pay  the  income  every  year  to  such 
children,  now  unborn,  as  he  sees  fit,  is  such  trust  wholly  void, 
or  is  it  good  for  twenty-one  years,  on  the  ground  that  the 
annual  payments  are  separable?  On  this  see  §  410  a,  post. 

11.  Effect  of  Interests  being  too  Remote. 

§  247.  (1)  Effect  on  Prior  Limitations.  —  If  future  inter- 
ests created  by  any  instrument  are  avoided  by  the  Rule  against 
Perpetuities,  the  prior  interests  become  what  they  would  have 
been  had  the  limitation  of  the  future  estates  been  omitted 
from  the  instrument.  Thus,  if  an  estate  is  given  to  A.  for 
life,  remainder  to  his  children  and  their  heirs,  but,  if  the  children 
all  die  under  twenty-five,  then  to  B.  and  his  heirs,  the  limitation 
to  B.  is  too  remote,  and  the  children  of  A.  take  an  indefeasible 
fee  simple.  The  cases  illustrating  this  are  innumerable.2  So 
when  there  is  a  devise  on  a  remote  condition,  and  no  prior  de- 
vise, the  land  descends  to  the  heir  who  has  an  indefeasible  fee.3 

§  248.  If  the  devise  of  a  future  interest  is  void  for  remote- 
ness, but  the  prior  devise  is  for  life  only  or  other  limited  period, 

—  for  instance,  if  there  be  a  devise  to  an  unborn  child  for 
life,  remainder  to  the  unborn  child  of  such  unborn  child, 

—  the  property  after  the  termination  of  the  prior  interest  goes 
to  the  person  to  whom  property  which   has  been   invalidly 
devised  or  bequeathed  goes.    This  person  is  generally  the  hen* 
in  case  of  realty,  and  the  residuary  legatee  in  case  of  person- 
alty.   There  is  no  difference  in  this  respect  between  a  devise 
or  bequest  void  for  remoteness  and  a  devise  or  bequest  void 
for  any  other  reason.4 

1  See   1   Jann.  Wills  (6th  ed.)  U.  C.  Q.  B.  232;  1  Ont.  Ap.  452; 

308;  §  232,  note  7,  ante.  2  Can.  S.  C.  497.    Cf.  Re  Daveron, 

4  See,  for  example,  Brattle  Sq.  [1893]  3  Ch.  421;  Goodier  v.  Ed- 
Church  v.  Grant,  3  Gray,  142,  166  rounds,  Id.  455. 
et  seq.  *  Andrews    v.   Rice,    53    Conn. 

1  See  Ferguson  v.  Ferguson,  39  566.     Tongue  v.  Nutwell,  13  Md. 


230  THE  RULE  AGAINST  PERPETUITIES 

§  249.  In  Caldwell  v.  Wittis  l  there  was  a  bequest  of  per- 
sonalty to  A.  for  life,  with  what  was  held  to  be  a  too  remote 
limitation  over.  The  Court  contrived  to  reach  the  extraor- 
dinary result  that  A.  took  an  absolute  interest.  They  quoted  a 
remark  by  Smith,  C.  J.,  in  Harris  v.  McLaran,2  that  the 
estate  of  the  first  taker  was  absolute  "in  those  cases  in  which 
an  intention  to  dispose  of  the  whole  interest  is  apparent,  and 
where  also  conditional  limitations  are  engrafted  upon  interests 
in  the  first  takers,  whichr  in  the  absence  of  the  conditional 
limitations,  would  be  held  to  be  absolute  interests."  What 
Smith,  C.  J.,  meant  was  that  when  the  first  taker  takes  an 
absolute  interest  subject  to  a  conditional  limitation,  if  the 
conditional  limitation  is  too  remote,  the  first  taker  retains 
his  absolute  interest.  The  Court  in  Caldwell  v.  Willis  must 
have  understood  the  remark  to  mean  that  if  the  interest 
of  the  first  taker  plus  the  void  limitation  was  meant  to  carry 
the  whole  interest,  then  the  first  taker  takes  the  whole  inter- 
est. That  the  remark  of  Smith,  C.  J.,  could  have  been  so 
misunderstood,  and  that  so  misunderstood  it  could  have  been 
supposed  to  be  law,  seem  equally  inconceivable;  but  Caldwett 
v.  Willis  is  not  otherwise  intelligible.3 

§  249  o.   Some  recent  cases  in  which  the  invalidity  for  re- 

415.     Deford  v.   Deford,  36  Md.  Carroll,  3  H.  &  McH.  333.    Tongue 

168.    Cf.  Wainman  v.  Field,  Kay,  v.  Nutwell,  ubi  sup.     See  Tregon- 

507;  Blight  v.  Hartnoll,  23  Ch.  D.  well   v.   Sydenham,    3    Dow,    194. 

218;  Loyd  v.  Loyd,   102  Va.  519.  Contra,    Ferguson    v.    Hedges,     1 

There  is  no  question  that  personal  Hairing.  524.    And  see  Hayden  v. 

property   included   in   a  void   be-  Stoughton,  5  Pick.  528,  536  et  seq. 

quest  goes  to  the  residuary  legatee.  Often,  by  modern  legislation,  lapsed 

Shanley  v.  Baker,  4  Ves.  732.    Cox  and  void  devises  go  to  the  residuary 

v.  Harris,  17  Md.  23.     Deford  v.  devisee.    1  Viet.  (1837)  c.  26,  §  25. 

Deford,   ubi  sup.     1   Jarm.   Wills  Thayer  v.  Wellington,  9  Allen,  283. 

(6th  ed.)  945.    The  better  opinion  See  Massey's  Appeal,  88  Pa.  470. 

seems  to  be  that  void  devises,  like  l  57  Miss.  555. 

lapsed  devises,  go  to  the  heir.     1  *  30  Miss.  533,  570. 

Jarm.  Wills   (6th  ed.)   946.     Van  *  As  to  an  equally  strange  reso- 

Kleeck  v.  Reformed  Dutch  Church,  lution  on  another  point  in  this  case, 

6  Paige,  600;  20  Wend.  457.   Greene  see  §  398,  post, 
v.  Dennis,  6  Conn.  292.    Lingan  v. 


AND   ITS   COROLLARIES.  231 

moteness  of  a  subsequent  limitation  has  been  held  to  destroy 
prior  limitations  also,  call  for  notice.  The  first  of  them  is 
Lockridge  v.  Mace.1  In  this  case  there  was  a  devise  to  the 
testator's  wife  for  life,  remainder  to  his  children  for  life, 
remainder  to  his  grandchildren  for  life,  remainder  to  his  great- 
grandchildren in  fee.  The  Court  of  course  held  the  last 
limitation  void.  It  then  asks  the  question  whether  all  the  life- 
estates  "share  the  fate  of  the  clause  which  attempts  to  give 
to  the  great-grandchildren  an  estate  in  fee,  or  is  the  will  void, 
only  in  so  far  as  it  exceeds  the  limitation  prescribed  by  law?  "  It 
then  proceeds  to  cite  authorities  and  concludes  thus:  "Guided 
by  these  authorities,  it  must  be  held"  that  the  devise  "must 
fail  in  toto."  But  in  fact  none  of  these  authorities  support  the 
conclusion  of  the  Court.2  And  if  anything  is  now  well  settled  in 
the  law  it  is  that  a  life  estate,  good  in  itself,  is  not  destroyed 
by  the  remainder  over  being  bad  for  remoteness  or  any  other 
reason. 3  Even  where  the  life  estates  are  to  unborn  persons  they 
are  good.  In  Mr.  Lewis's  words  "it  occasions  surprise  to  find 
the  question  treated  as  in  any  way  doubtful  or  open  to  argu- 
ment." 4  Sir  John  Leach,  M.  R.,  in  Hayes  v.  Hayes,5  held  a  life 
estate  to  an  unborn  person  to  be  bad,  but  he  lived  to  regret  it.6 
In  the  preceding  edition  it  was  said:  "It  is  confidently  to  be 

1  109  Mo.  162.  488,  is  to  an  editorial  note  based  on 

J  They  are  Leake  0.  Robinson,  a  mistaken  view  of  St.  Armour  v. 

2  Mer.  363;  Donahue  v.  McNichol,  Rivard. 

61  Pa.  73,  78,  79;  Hawley  v.  James,  J  Take,  for  instance,  four  cases 

16  Wend.  120,  121,  126;  St.  Armour  from   as   many   different   jurisdic- 

v.  Rivard,  2  Mich.  294;  2  Lead.  Gas.  tions.    Stuart  v.  Cockerell,  L.  R.  5 

in  Amer.  Law  of  Real  Prop.  488.  Ch.   13.     Wood  v.  Griffin,  46  N. 

The  first  three  have  nothing  to  do  H.  230.     Levering  v.  Worthington, 

with  the  subject.    In  St.  Armour  v.  106  Mass.  86.    Stout  v.  Stout,  44 

Rivard  (see  §  665,  post)  there  seems  N.  J.  Eq.  479.     See  Lewis,  Perp. 

to    have   been    an    estate-tail    (in  Suppl.    144;   Marsden,   Perp.   174, 

Michigan  by  statute  an  estate  in  175;  Perry,  Trusts  (6th  ed.)  §  377, 

fee   simple)    with   a   proviso   that  note, 
each   tenant   should   hold   for  life  *  Perp.  Suppl.  144. 

only;  this  proviso  was  declared  in-  6  4  Russ.  311. 

valid.     The  reference  to  2  Lead.  •  See  §  232,  ante. 

Gas.  in  Amer.  Law  of  Real  Prop. 


232  THE  RULE  AGAINST  PERPETUITIES 

hoped  that  the  learned  Court  of  Missouri  will  come  into 
line."  But  this  hope  has  been  disappointed;  in  Shepperd  v. 
Fisher,1  Lockridge  v.  Mace  was  followed. 

§  249  b.  The  next  case  is  Johnston's  Estate?  A  testator 
devised  land  to  trustees  for  a  term  of  seventy-five  years,  to 
pay  debts  and  legacies  out  of  the  income,  and  then  on  each 
1st  of  May  to  divide  the  income  "among  all  my  children 
share  and  share  alike  and  the  children  of  such  of  my  children 
as  may  during  said  period  depart  this  life,  the  children  of  such 
deceased  children  to  have  and  take  however  only  such  portion 
and  share  of  said  rents,  issues,  and  profits  as  their  deceased  par- 
ents would  have  taken  if  living;  the  said  mode  of  distribution 
to  obtain  also  in  regard  to  said  rents,  issues,  and  profits,  among 
descendants  of  more  remote  degree  than  children's  children;" 
and  at  the  expiration  of  the  term  of  seventy-five  years,  the  land 
to  be  sold  and  the  proceeds  distributed  among  all  of  his  children 
then  living,  and  the  issue  of  those  then  dead.  One  of  the  tes- 
tator's heirs  brought  a  bill  to  set  aside  the  trust,  and  obtain 
possession  of  a  share  in  the  land. 

The  case  was  heard  in  the  Court  of  Common  Pleas  by 
Stewart,  P.  J.,  who  delivered  a  very  lucid  opinion,  granting 
the  prayer  of  the  bill,  and  the  decree  was  affirmed  in  the  Supreme 
Court,  that  Court  adopting  Stewart,  P.  J.'s,  opinion.  The 
learned  judge  held  that  the  devise  of  the  trust  term  for  years 
was  good  in  itself  and  that  the  circumstance  that  it  would 
continue  seventy-five  years  was  immaterial.  He  then  held 
that  the  gift  over  at  the  end  of  the  seventy-five  years  was 
contingent,  and  therefore,  of  course,  too  remote.  But  he  went 
on,  and  decided  that  although  the  term  for  years  was  good 
in  itself  it  was  bad  because  the  contingent  gift  over  at  the 
expiration  of  the  term  was  too  remote.  He  admitted  (p.  191) 
that  "no  cases  are  to  be  found  in  Pennsylvania  supporting" 
this  view,  and  he  relied  on  three  New  York  cases,  and  on 
Thorndike  v.  Loring.* 

1  206  Mo.  208,  245-247.  •  15  Gray,  391;  §  242,  ante. 

1  185  Pa.  179. 


AND   ITS   COROLLARIES.  233 

The  New  York  cases  were  all  decided,  not  at  common  law, 
but  under  the  peculiar  provisions  of  the  New  York  Statutes.1 
The  difference  between  Thorndike  v.  Loring  and  Johnston's 
Estate  is  this:  In  the  former  case  the  income  was  to  be  ac- 
cumulated for  fifty  years  in  order  that  at  the  end  of  that  time 
the  accumulations  might  be  given  over,  but  the  gift  over  was 
too  remote,  and  could  never  take  effect,  therefore  the  ob- 
ject of  the  trust  wholly  failed;  but  in  the  latter  case  the  object 
of  the  trust  was  not  solely  for  the  purpose  of  the  remote  gift 
over,  —  in  fact,  it  had  nothing  to  do  with  the  gift  over,  —  it 
was  created  solely  to  regulate  the  payment  out  of  income 
during  the  seventy-five  years.  It  would  have  effected  its 
purpose  had  there  been  no  gift  over  at  all.  There  is  a  series  of 
English  cases  opposed  to  Johnston's  Estate,2  and  on  the 
whole,  with  great  submission,  the  decision  seems  difficult  to 
maintain.3 

§  249  66.  Johnston's  Estate  has  now  been  followed  in  Gerber's 
Estate 4  and  Kountz's  Estate.6  The  learned  reader  is  referred  to 
a  severe  but  just  criticism  on  the  three  cases  by  Mr.  Foulke.6 

1  By  N.  Y.  Rev.  Sts.  pt.  2,  c.  1,  Although  the   reason  given  by 
Tit.  2,  §§  14,  15,  23,  63,  and  c.  4,  Stewart,  P.  J.,  for  invalidating  the 
Tit.  4,  §§  1,  2,  as  revised  by  c.  547  trust  term  seems  insufficient,   yet 
of  the  Laws  of  1896,  §§  32,  39,  83,  were  not  the  trusts  of  the   term, 
and  c.  417  of  the  Laws  of  1897,  §§2,  in  part  at  least,  bad?    On  each  1st 
3  (Birdseye's  Gen.  Laws  (3d  ed.),  of  May  for  seventy-five  years  the 
3019,  3020,  3027,  and  2631,  2632),  income  was  to  be  divided  among 
all  estates  are  void  which  suspend  the  children  then  living,   and  the 
the  power  of  alienation  for  more  issue  per  stirpes  then  living  of  child- 
than  two  lives,  and  all  trust  estates  ren    then    deceased;     the   persons 
are  inalienable,  therefore  in  New  taking  and  the  size  of  the  shares 
York  such  a  term  as  existed  in  at  each  period  of  distribution  could 
Johnston's    Estate    would    be,    of  not  be  determined  until  such  period, 
course,  bad.  which  might  be  long  after  the  limits 

2  Gooding    v.   Read,   21    Beav,  fixed  by  the  Rule  against  Perpetui- 
478;  4  De  G.  M.  &  G.  510.     Re  ties.    On  the  question  whether  such 
Watson,   [1892]    W.   N.    192.     Be  trusts  could  be  sustained  in  part, 
Wise,  [1896]  1  Ch.  281.  see  §§  410  a,  et  seq.,  post. 

J  The  passage    in    the   text  is  *  196  Pa.  366. 

quoted  with  approval  in  Lyons  v.          '  213  Pa.  390. 
Bradley,  168  Ala.  505,  521.  •  Treatise,  §§  472-476. 


234  THE  BULB  AGAINST  PERPETUITIES 

§  249  c.  The  third  case  is  Eldred  v.  Meek.1  Here  prop- 
erty was  given  to  three  of  the  testator's  grandsons  by  name 
upon  their  becoming,  respectively,  twenty-five  years  of  age; 
subsequent  clauses  provided  that  if  any  of  the  grandsons  died 
without  leaving  children  their  shares  should  go  to  the  sur- 
vivor and  survivors  upon  their  reaching  twenty-five,  and  then 
another  clause  provided  that  if  any  grandson  should  die  before 
arriving  at  twenty-five  leaving  children,  then  such  children 
becoming  twenty-five  years  of  age  respectively  should  take 
their  father's  share.  This  gift  to  the  children  of  the  grand- 
sons upon  their  attaining  twenty-five  was  too  remote,  but  the 
Court  went  on  and  held  that  the  gifts  to  the  grandsons  were 
bad  also.  The  Court  rely  on  Johnston's  Estate  and  Lawrence 
v.  Smith,2  and  on  New  York  decisions  under  statutes.  Eldred 
v.  Meek  has  been  followed  in  Pitzel  v.  Schneider.3  Cf.  Reid  v. 
Voorhees.4 

§  249  d.  The  Supreme  Court  of  Illinois  has  often  distinctly 
recognized  that  a  limitation  is  not  void  because  it  is  followed 
by  a  remote  limitation; 5  but  the  Court  distinguished  the  cases 
mentioned  in  the  preceding  section  on  the  ground  that  where 
provisions  in  themselves  valid  are  inextricably  connected  with 
invalid  provisions  the  whole  must  fail.  Undoubtedly  this  is  a 
possibility,6  but  it  is  submitted  that  the  application  of  such  a 
doctrine  in  those  cases  went  too  far.7 

§  249  e.  Lawrence  v.  Smith  8  is  not  a  case  of  prior  and  sub- 
sequent limitations,  but  may  conveniently  be  discussed  here. 
The  testator  gave  all  his  estate  to  trustees  in  trust  to  pay 
annuities  to  certain  persons,  including  two  sons  and  a  daughter; 

»  183  111.  26.  Johnson  v.  Preston,  226  111.  447. 

*  §  249  e,  post.  Quinlan  v.  Wickman,  233  111.  39. 

3  216  111.  87;  and  also  in  Dime  •  Cf.  White  v.  Allen,  76  Conn. 

Savings  Co.  v.  Watson,  254  111.  185;  Lepard  v.  Clapp,  80  Conn.  29; 

419,  427;  and  Barrett  v.  Barrett,  Russell  v.  Hartley,  83  Conn.  654, 
255  111.  332.  659. 

«  216  111.  236.  »  See  Kales.Fut.  Int.  in  111.  §  183. 

»  Howe  v.  Hodge,  152  111.  252.  •  163  111.  149,  affirming  Smith 

Chapman  v.  Cheney,  191  111.  574.  v.  Lawrence,  27  Chic.  L.  News, 

Reid  v.  Voorhees,  216  111.  236.  155. 


AND   ITS   COROLLARIES.  235 

to  pay  to  each  of  three  of  his  daughters,  A.,  B.,  and  C.,  $600 
annually  during  her  life,  on  her  death  to  pay  to  each  of  her 
children  $300  annually  until  such  child  reached  twenty-five  and 
then  to  pay  it  $10,000.  After  the  payment  of  all  these  sums, 
he  directed  the  principal  of  his  estate  to  be  paid  and  conveyed 
to  his  grandchildren  then  living.  The  testator  died  in  1892, 
leaving  property,  real  and  personal,  worth  about  $90,000. 
He  left  four  daughters  and  three  sons,  —  one  of  the  latter  was 
in  prison  under  a  life  sentence  and  was  expressly  disinherited 
in  the  will.  His  three  daughters  aforesaid,  A.,  B.,  and  C.,  who 
at  his  death  were  respectively  fifty-three,  fifty-two,  and  forty- 
nine  years,  had  among  them  five  children,  the  oldest  of  whom 
was  twenty-four  and  the  youngest  nine.  His  other  children, 
all  of  whom  were  "of  mature  age,"  had  no  issue. 

§  249  /.  The  Court  held  that  the  final  gift  over  was  too 
remote,  and  they  also  seem  to  have  been  of  the  opinion  that 
the  provisions  for  payment  to  the  grandchildren  until  each 
reached  twenty-five,  and  then  the  payment  to  each  of  $10,000 
were  good  so  far  as  they  concerned  those  living  at  the  testator's 
death;  but  that  if  any  children  had  been  born,  after  the  death 
of  the  testator,  to  A.,  B.,  or  C.,  no  one  of  such  children  could 
have  taken  the  $10,000.  These  determinations  seem  of  unim- 
peachable correctness.  The  gifts  to  the  testator's  grandchildren 
were  clearly  separable,  and  one  bora  in  fact  in  the  testator's  life 
could  take,  though  one  afterwards  could  not.1  But  the  Court 
came  to  the  conclusion  that  inasmuch  as  the  testator's  inten- 
tions towards  all  possible  children  of  A.,  B.,  and  C.  could  not 
be  carried  out,  the  trust  should  not  be  carried  out  for  those 
who  actually  existed. 

§  249  g.  This  decision  is  incomprehensible.  The  testator 
has  by  his  will  given  $10,000  apiece  to  five  of  his  grandchil- 
dren, and  the  Court  takes  it  away.  For  what  reason?  Is  it 
because  the  gift  is  against  public  policy  as  too  remote?  or  is 
it  because,  under  the  circumstances,  the  testator  would  not 

1  See  §  389,  post . 


236  THE   BULB  AGAINST  PERPETUITIES 

have  wished  them  to  take  it?  It  is  not  for  the  first  reason: 
the  Court  assumes  and  admits  that  the  gifts  are  in  them- 
selves perfectly  good.  It  must  be,  then,  for  the  second  reason, 
—  that  the  testator  would  not  have  wished  these  grandchildren 
to  take.  Let  us  see  how  it  would  have  presented  itself  to  the 
testator  on  his  deathbed,  under  all  the  circumstances.  Sup- 
pose some  one  had  said  to  him:  "You  have  five  grandchildren, 
their  ages  running  from  twenty-four  to  nine.  They  are  the 
children  of  three  of  your  daughters,  the  youngest  of  whom  is 
forty-nine.  You  have  given  to  each  of  the  children  of  your 
three  daughters  $10,000;  the  gift  is  good  for  all  those  grand- 
children that  you  know;  but  if  any  grandchild  is  born  after 
your  death,  it  cannot  take.  The  alternatives  are  these:  If  the 
will  stands,  these  five  grandchildren  will  get  $10,000  apiece, 
and  the  rest  of  your  property  will  go  to  all  of  your  heirs,  — 
that  is,  your  children  —  and  they,  including  the  convict,  will 
get  about  $6,000  apiece.  If  you  destroy  the  will,  none  of  the 
grandchildren  will  get  a  dollar,  but  your  children,  including 
the  convict,  will  get  over  $12,000  apiece.  These  (legally)  pos- 
sible grandchildren  will  get  nothing  either  way.  There  is  no 
time  to  make  a  new  will.  Shall  the  present  will  go  into  the 
fire  or  not?"  Is  it  possible  to  doubt  what  the  testator's  an- 
swer would  have  been?  Is  it  conceivable  that  he  would  desire 
to  deprive  the  grandchildren  whom  he  has  known  and  loved  of 
his  bounty  because  he  could  not  do  the  same  for  some  possi- 
bility whose  chance  of  existence  was  a  thousand  to  one?  Such 
pedantic  fanaticism  of  uniformity  in  a  testator  is  incredible. 
The  cases  which  establish  the  doctrine  of  independent  gifts 
are,  of  course,  entirely  opposed  to  the  doctrine  of  Law- 
rence v.  Smith.  The  Court  was  probably  influenced  by 
the  cases  under  the  New  York  Revised  Statutes.1  It  is 
much  to  be  regretted  that  a  learned  Court,  walking  in  the 
freedom  of  the  Common  Law,  should  put  its  neck  under 
the  yoke  of  the  New  York  Statutes,  or  adopt  arbitrary 
and  irrational  assumptions  as  to  what  testators  would 
1  See  §  249  6,  ante. 


AND   ITS   COROLLARIES.  237 

have  intended  if  they  had  known  that  their  full  intentions 
could  not  be  carried  out. 

§  249  h.  In  Hewitt  v.  Green l  a  testator  bequeathed  $100,000 
to  his  executors  in  trust  to  pay  certain  annuities  out  of  the  in- 
come; the  rest  of  the  income  to  be  accumulated  for  his  grand- 
children, but  when  each  grandchild  should  reach  twenty-one 
the  interest  on  his  share  to  be  paid  to  him  until  the  youngest 
grandchild  should  reach  twenty-five,  when  the  principal  should 
be  distributed  among  the  grandchildren  then  living,  the  share 
which  any  grandchild  would  have  taken  if  then  living  to  go  to 
any  issue  he  might  have  left  at  his  death.  The  gift  of  the  prin- 
cipal was,  of  course,  too  remote.  Stevenson,  V.  C.,  said:  "The 
limits  of  this  opinion  already  too  wide  will  not  permit  the 
minute  discussion  of  this  provision  for  the  distribution  of  ac- 
cumulated income  and  accruing  income  to  adult  grandchildren, 
or  to  consider  the  various  questions  in  regard  to  that  provision 
which  might  be  raised.  The  whole  matter  may,  I  think,  be 
disposed  of  by  the  proposition  that  the  gift  of  income  to  the 
grandchildren  is  a  mere  incident  to  the  tying  up  of  the  $100,000 
of  the  principal  for  their  benefit  when  the  youngest  member 
of  the  class  has  reached  the  age  of  twenty-five  years.  When  the 
main  gift  falls,  the  incidental  gift  falls  with  it."  Disposing  of 
the  gift  of  income  to  the  grandchildren  when  they  reach  twenty- 
one  by  calling  it  incidental,  seems  a  rather  rough  and  ready 
way  of  dealing  with  the  question. 

§  249  i.  See  also  Reed  v.  Mcllvain.2  As  to  the  effect  of  a 
power  or  an  appointment  being  too  remote,  see  §§  531-537, 
post, 

§  250.  If  a  contingent  event  is  too  remote  to  serve  as  a 
condition  precedent  for  a  future  estate,  may  it  not  yet  serve 
as  a  condition  subsequent  to  determine  a  present  estate? 
Or,  in  other  words,  may  not  a  contingent  clause  purporting  to 
be  a  conditional  limitation,  though,  on  account  of  remoteness, 
inoperative  to  take  effect  as  a  conditional  limitation  creating 
1  77  N.  J.  Eq.  345,  363.  *  113  Md.  140;  §  245  h,  ante. 


238  THE   RULE  AGAINST  PERPETUITIES 

a  new  estate,  yet  serve  as  a  contingent  termination  of  the  prior 
estate?  If  the  prior  estate  is  for  life  or  years,  then  it  may  be 
determinable  by  a  contingent  event,  which  yet  is  too  remote 
to  serve  as  the  condition  precedent  of  a  subsequent  estate. 
Such  contingency  may  operate  purely  as  a  condition  subse- 
quent which  in  effect  creates  a  special  limitation  of  the  preceding 
estate.1  And  if  it  is  clear  that  the  settlor  or  testator  intended 
that  on  the  occurrence  of  the  event  the  prior  estate  should 
determine,  whether  the  subsequent  estate  took  effect  or  not, 
then  on  the  happening  of  the  event  the  prior  estate  will  come 
to  an  end,  although  the  subsequent  estate  is  too  remote.2 
But  it  will  take  clear  language  to  show  an  intention  to  have 
the  determining  limitation  taken  separately  from  the  remote 
gift.  "When  you  find  a  forfeiture  clause  associated  with  a 
gift  over,  is  it  not  reasonable  to  read  them  together?"3  If 
the  prior  estate  be  a  fee  simple  the  void  conditional  limitation 
cannot,  it  is  submitted,  thus  operate  as  a  contingent  termina- 
tion of  the  prior  estate.  The  limitation  purporting  to  be  over 
to  a  third  person  cannot  be  a  common-law  condition,  for  that 
can  be  taken  advantage  of  only  by  the  grantor  or  his  heirs 
by  way  of  re-entry;  and  no  right  of  re-entry  in  the  heirs  can 
be  found  in  an  express  limitation  over  to  a  third  person.4 
And  except  by  a  condition,  the  only  way  in  which  a  fee  can 
now  be  cut  short  is  by  the  creation  of  a  new  estate  through  a 
conditional  limitation.  Since  the  Statute  Quia  Emptores  there 
can  be  no  fee  with  a  contingent  termination,  apart  from  a  con- 
dition or  conditional  limitation.5  Therefore,  if  an  estate  is 
given  to  A.  and  his  heirs  until  B.'s  (unborn)  children  reach 
twenty-five,  and  then  to  such  children,  it  cannot  be  con- 
tended that  although  the  estate  to  B.'s  children  is  too  re- 

1  See  Adams  v.  Adams,  [1892]      959,  963.    2  Jarm.  Wills  (6th  ed.) 

1  Ch.  369,  376,  and  §  32  and  note      1442,  1456. 

2,  ante.  *  And  such  a  right  of  re-entry 

1  See  Lewis,  Perp.  173.  would  be  too  remote,  in  the  case 

»  Hodgson  v.  Halford,  11  Ch.  D.      supposed.     §  299,  post. 

6  See  §§  31-41  a,  ante. 


AND  ITS  COROLLARIES.  239 

mote,  yet  A.'s  estate  has  come  to  an  end  when  B.'s  chil- 
dren reach  twenty-five.1 

§  251.  (2)  Effect  on  Subsequent  Limitations.  —  When  an 
interest  is  vested  it  is  never  too  remote,  although  preceded  by 
other  interests  which  are  too  remote.  In  former  editions  it 
was  said:  "Thus  if  an  estate  is  given  (1)  to  A.  for  life,  (2) 
to  A.'s  unborn  child  for  life,  (3)  to  the  child  of  such  unborn 
child  for  life,  (4)  to  B.  in  fee,  B.'s  estate  is  good,  although  the 
remainder  to  the  child  of  A.'s  unborn  child  is  too  remote.  So 
although  the  later  interest  is  not  vested  at  its  creation,  yet 
if  it  must  become  vested  within  the  limits  fixed  by  the  Rule 
against  Perpetuities,  it  will  be  good."  But  this  is  incorrect. 
A  vested  estate  is  an  estate  which  is  subject  to  no  condition 
precedent  except  the  termination  of  the  precedent  estates.2  In 
the  case  put  the  estate  to  B.  is  subject  to  the  condition  pre- 
cedents of  (1)  the  death  of  A.,  (2)  the  death  of  A.'s  unborn 
child,  (3)  the  death  of  the  child  of  A.'s  unborn  child.  A.  and 
A.'s  unborn  child  have  estates  for  life,  but  the  gift  to  the  child 
of  A.'s  unborn  child  being  remote,  said  child  has  no  estate; 
and  therefore  as  B.'s  estate  is  subject  not  only  to  the  termina- 
tion of  the  life  estates  of  A.  and  of  A.'s  unborn  child,  but  also 
to  the  contingency  of  the  death  of  an  unborn  person  who  has 
no  estate,  the  estate  given  to  B.  is  too  remote,  and  so  it  was 
held  in  In  re  Mortimer.3 

§  252.  As  all  life  interests  to  persons  now  in  being  must 
take  effect,  if  at  all,  within  lives  in  being,  all  such  interests 
would  seem  to  be  good,  although  preceded  by  interests  that  are 
too  remote.  Thus  suppose  personalty  is  bequeathed  to  A., 
and  if  A.  dies  without  issue  then  to  B.,  and  if  B.  dies  with- 
out issue  then  to  C.  for  life,  and  on  C.'s  death  to  D.,  B.'s 
interest  is  too  remote;  but  although  C.  cannot  take  until  both 
A.  and  B.'s  issue  are  extinct,  yet  inasmuch  as  C.'s  interest 

1  On  limitations  after  equitable  note  by  the  author,  23  Law  Quart, 

fees,  see  §  327,  post.  Rev.  127,  is  wrong.     See  1  Jarm. 

»  See  §§  8,  101,  ante.  Wills  (6th  ed.)  352-354. 
»  [1905]  2  Ch.  (C.  A.)  502.    A 


240 


THE   RULE   AGAINST   PERPETUITIES 


must  come  into  possession  in  his  lifetime,  if  it  comes  at  all,  it 
would  seem  as  if  it  were  not  too  remote;  while  D.'s  interest, 
not  being  limited  to  his  life,  is  again  too  remote.  So  if  property 
is  devised  to  A.  for  life  (or  for  ninety-nine  years  if  he  live  so 
long)  and  then  to  his  first  son  (then  unborn)  for  a  like  estate, 
followed  by  remote  limitations,  and  then  to  C.,  a  living  person, 
for  a  like  estate,  the  gift  to  C.  seems  not  too  remote.  There 
are  decisions,  however,  that  in  such  a  case  C.'s  estate  would  be 
bad.  It  was  probably  so  held  in  Somerville  v.  Lethbridge,1 
though  the  case  is  too  imperfectly  reported  for  any  certain  con- 
clusion.2 And  such  a  limitation  in  the  case  of  Beard  v.  Westcott, 
after  having  been  held  good  by  the  Court  of  Common  Pleas,3 


1  6  T.  R.  213. 

1  In  6]  T.  R.  213,  the  devise  by 
the  testator  is  said  to  have  been  in 
trust  for  the  use  of  A.  "for  the  term 
of  ninety-nine  years  if  he  should  so 
long  live,  and  after  that  term  to  the 
use  of  the  first,  second,  third,  and 
fourth  sons  of"  A.  "and  the  issue 
male  of  their  bodies  lawfully  begot- 
ten for  the  like  term  of  ninety-nine 
years,  as  they  should  be  in  seniority 
of  birth,  and  in  default  of  such  issue 
male  in  him  or  them,  then  to  the 
use  of  his  kinsman"  B.  "and  the 
issue  male  of  his  body  lawfully  be- 
gotten for  the  like  term  of  ninety- 
nine  years,"  and  then  over.  The 
devise  is  stated  in  the  same  terms 
in  Southey  v.  Somerville,  13  Ves. 
486,  487;  but  the  certificate  of  the 
judges  says  that  the  first  son  of  A. 
would  take  an  estate  for  ninety- 
nine  years,  determinable  with  his 
life.  Sugden,  in  a  note  to  his  edi- 
tion of  Gilbert  on  Uses,  269,  says 
that  successive  terms  of  ninety- 
nine  years,  determinable  on  their 
lives,  were  given  to  A.  and  to  his 
first,  second,  third,  and  fourth  sons, 
and  the  issue  male  of  their  bodies; 


and  in  Beard  v.  Westcott,  5  Taunt. 
393,  403,  404,  where  the  interest  of 
each  successive  taker  was  limited 
to  an  estate  for  ninety-nine  years, 
determinable  on  his  life,  it  was  said 
by  Serjeant  Manley,  in  argument, 
that  the  devise  "appears  to  have 
been  penned  by  the  same  hand"  as 
that  in  Somerville  v.  Lethbridge. 
It  would  seem,  therefore,  probable 
that  all  the  issue  were  to  take  as 
purchasers,  and  that  perhaps  B. 
also  was  to  have  only  an  estate  for 
ninety-nine  years,  determinable  by 
his  death.  The  Court  of  King's 
Bench  certified  to  the  Court  of 
Chancery  that  A.  took  an  estate 
for  ninety-nine  years  determinable 
by  his  death,  and  then  his  first  son 
an  estate  for  ninety-nine  years  de- 
terminable by  his  death,  and  that 
the  other  limitations  were  void.  If 
the  devise  to  B.  (a  living  person) 
was  determinable  by  his  death,  it 
was  good  in  itself,  and  was  only 
rendered  bad  by  its  following  limita- 
tions bad  for  remoteness. 

1  5  Taunt.  393.   Qu.,  were  there 
not  here  separable  limitations? 


AND   ITS   COROLLARIES.  241 

was  adjudged  bad  by  the  Court  of  King's  Bench;1  and  the  de- 
cision of  the  Court  of  King's  Bench  was  approved  by  Lord 
St.  Leonards,  C.,  in  Mony penny  v.  Bering,2  and  by  Lord 
Romilly,  M.  R.,  in  Thatcher's  Trusts.3  Burley  v.  Evelyn* 
before  Vice-Chancellor  Shadwell,  is  to  the  same  effect;  and  so 
appears  to  be  Palmer  v.  Holford.5 

§  253.  Somerville  v.  Lethbridge  and  Beard  v.  Westcott  were 
cases  from  Chancery,  and  we  have  merely  the  certificates  of 
the  judges,  without  any  reasons  for  their  decision.  All  that 
is  said  in  Palmer  v.  Holford  on  the  point  in  question  is  given 
in  the  note  to  the  preceding  section.  Thatcher's  Trusts  goes 
entirely  upon  Beard  v.  Westcott;  and  in  Burley  v.  Evelyn  the 
counsel  conceded  that  a  limitation  subsequent  to  a  remote 
limitation  was  invalid.  The  reasons  and  authorities,  therefore, 
for  the  doctrine  that  a  life  interest  given  to  a  living  person  is 
bad  if  it  follows  an  interest  too  remote  are  to  be  found  in  the 
argument  of  Sir  Edward  Sugden  in  Beard  v.  Westcott,6  and 
his  judgment,  when  Chancellor,  in  Monypenny  v.  Dering.7 
And  with  all  respect  for  so  distinguished  a  name,  it  must 
be  said  that  his  reasons  are  not  satisfactory,  and  the  author- 
ities cited  by  him  are  not  in  point. 

§  254.   In  Beard  v.  Westcott 8  Sir  Edward  Sugden  said,  as 

5  B.  &  Aid.  801.  Leach,  said  that  the  gift  to  the 

2  De  G.  M.  &  G.  145.  children  of  A.  was  too  remote,  "and 

26  Beav.  365.  the  gifts  over,  not  being  to  take 

16  Sim.  290.  effect  until  after  the  same  period, 

4  Russ.  403.    In  this  case  per-  which  is  too  remote,  are  necessarily 

sonal  property  was  bequeathed  in  void   also."     It   does   not   appear 

trust  to  accumulate  the  income  for  whether  it  was  necessary  to  pass 

twenty-eight  years,  and  then  to  pay  upon  this  latter  point  or  not.    See 

the  fund  to  the  children  of  A.  who  Re  Abbott,  [1893]  1  Ch.  54,  57. 
were  then  living,  and  if  no  children  •  5  B.  &  Aid.  801,  808. 

of  A.  were  then  living,  then  to  the  7  2  De  G.  M.  &  G.  145,  180  et 

children  of  B.  who  were  then  living,  seq.     See   Gilb.  Uses    (Sugd.   ed.) 

and  if  no  children  of  B.  were  then  270,  note,  et  seq.;  1  Jarm.  Wills  (5th 

living,  then  to  B.  if  he  was  living;  ed.)  254,  255;  Marsden,  Perp.  291, 

and  in  case  of  B.'s  not  being  then  292. 
living,  there  were  other  gifts  over.          8  5  B.  &  Aid.  808. 
The  Master  of  the  Rolls,  Sir  John 


242  THE   RULE   AGAINST   PERPETUITIES 

counsel,  that  life  interests  to  living  persons  were  void  "be- 
cause it  was  the  intention  of  the  testator  that  those  limita- 
tions should  take  effect  only  in  case  the  previous  limitations 
were  capable  of  taking  effect,  and  had  failed;"  and  in  Mony- 
penny  v.  Bering  l  he  said  that  in  Beard  v.  Westcott  the  Court 
of  King's  Bench  "held  that  the  gift  over  was  void,  not  be- 
cause it  was  not  within  the  line  of  perpetuity,  but  expressly 
on  the  ground  I  have  adverted  to,  namely,  that  that  limita- 
tion over  was  never  intended  by  the  testator  to  take  effect, 
unless  the  persons  whom  he  intended  to  take  under  the  pre- 
vious limitation  would,  if  they  had  been  alive,  been  capable 
of  enjoying  the  estate,  and  that  he  did  not  intend  that  the 
estate  should  wait  for  persons  to  take  in  a  given  event,  where 
the  person  to  take  was  actually  in  existence  but  could  not 
take."  But  the  imputation  of  such  an  intent  to  a  testator 
seems  unwarranted.  Take  the  case  suggested  at  the  begin- 
ning of  §  252,  ante,  —  personalty  bequeathed  to  A.,  and  if  A. 
dies  without  issue  to  B.,  and  if  B.  dies  without  issue  then 
to  C.  for  life.  Suppose  the  testator  had  been  told:  "Your 
bequest  to  B.  is  bad;  but  if,  in  fact,  A.  and  B.  both  die  before 
C.  without  issue,  would  you  like  C.  to  take?  There  is  no  legal 
objection  to  his  doing  so,  should  you  wish  it."  What  reason 
is  there  to  suppose  that  the  testator  would  have  answered 
in  the  negative?  If  the  precise  contingency  has  happened  on 
which  he  directed  C.  to  take,  why  should  it  be  supposed  that 
he  does  not  wish  C.  to  take  simply  because  another  bequest 
cannot  take  effect?  It  is  not  as  if  C.  would  step  into  B.'s  place, 
and  take  what  the  testator  meant  B.  to  have,  for  C.  is  to  have 
nothing  until  B.  has  died  without  issue.  The  testator  did  not 
mean  that  the  bequest  to  C.  should  take  effect  until  the  families 
of  A.  and  B.  had  run  out,  and  it  is  not  suggested  that  it  shall 
take  effect  until  they  have  run  out.  But  when  they  have  run 
out,  why  should  it  not  take  effect?  This  supposed  intention  is 
not  merely  an  arbitrary  assumption,  but  one  directly  the  op- 
posite of  the  probable  intention. 

»  2  De  G.  M.  &  G.  182. 


AND   ITS   COROLLARIES.  243 

§  255.  The  cases  cited  by  Sir  Edward  Sugden  in  Beard 
v.  Westcott l  as  authorities  in  support  of  his  position  are  Alex- 
ander v.  Alexander?  Robinson  v.  Hardcastle?  Routledge  v. 
Dorril*  Brudenell  v.  Elwes.5  They  are  cases  where  there 
had  been  an  excess  in  the  execution  of  powers.  In  Alexander 
v.  Alexander,  under  a  power  to  appoint  to  children,  the  fund 
was  appointed  to  A.,  a  daughter,  for  life,  remainder  to  her 
children  living  at  her  death,  but  on  default  of  such  chil- 
dren of  A.  then  to  B.,  another  daughter.  A.  died  leaving 
children.  It  was  held  that  although  A.'s  children  were  not 
objects  of  the  power,  yet  that  B.  could  not  take;  for  the  ap- 
pointment was  to  him  only  on  the  contingency  of  A.'s  dying 
without  children,  which  had  not  occurred.  In  the  other 
cases  there  were  appointments  to  persons  who  were  not  objects 
of  the  power,  and  then  contingent  appointments  over  to  per- 
sons who  were  within  the  power.  The  contingencies  occurred, 
in  fact,  within  the  limits  required  by  the  Rule  against  Perpetu- 
ities; but  as  they  might  not  have  so  occurred,  the  appoint- 
ments made  dependent  on  them  (not  being  life  interests) 
were  of  course  too  remote.6  These  cases  are  no  authority  for 
Beard  v.  Westcott  and  the  decisions  which  have  followed  it. 
In  these  cases  of  powers,  the  reason  why  a  future  interest 
could  not  take  effect  was  either  that  the  contingency  upon 
which  it  depended  had  never  occurred,  or  that  the  interest 
might  come  into  possession  at  too  remote  a  time.  But  in  Beard 
v.  Westcott  the  contingency  upon  which  the  gift  over  depended 
would  have  occurred,  and  the  gift  could  not  possibly  have 
taken  effect  at  too  remote  a  tune. 

§  256.  If  in  these  cases  of  powers  there  had  been  an  ap- 
pointment to  persons  not  objects  of  the  power,  with  an  ap- 
pointment over  to  persons  who  were  objects  of  the  power, 
and  the  event  on  which  the  gift  over  was  to  take  effect  had 

1  5  B.  &  Aid.  808.  *  1  East,  442. 

1  2  Ves.  Sr.  640,  643.  «  See   Reid  v.  Reid,  25   Beav. 

1  2  Bro.  C.  C.  22,  344;  2  T.  R.  469;  Sugd.  Pow.  (8th  ed.)  508-511; 

241,  380,  781.  Marsden,  Perp.  258,  289. 
2  Ves.  Jr.  357. 


244  THE   RULE  AGAINST  PERPETUITIES 

been  one  which  must  have  occurred,  if  at  all,  within  the  limits 
of  the  Rule  against  Perpetuities,  and  which  in  fact  had  occurred, 
then  those  cases  would  have  been  in  point  in  Beard  v.  Westcott. 
Such  a  case  has  occurred,  and  was  decided  by  Sir  Edward  Sug- 
den  himself  in  favor  of  the  validity  of  the  limitation  over.  In 
Crozier  v.  Crozier  l  a  donee  of  a  power  to  appoint  among  his 
children  appointed  to  his  wife  for  life,  remainder  to  his  eldest 
son.  The  Lord  Chancellor  of  Ireland  held  that  during  the  life 
of  the  wife  the  property  went  as  in  default  of  appointment, 
but  that  the  appointment  to  the  eldest  son  in  fee  was  good. 
In  commenting  on  Beard  v.  Westcott  he  said  he  thought  the 
decision  of  the  Court  of  Common  Pleas  was  wrong,  "for  the 
consequence  was  that  there  might  be  a  person  in  esse  entitled 
to  take  according  to  the  words  of  the  first  limitation  in  the 
will,  but  incapable  in  law,  and  a  remainder-man  in  esse  capable 
of  taking  by  law,  but  incapable  of  taking  under  the  will  because 
the  contingency  has  not  happened,  which  was  to  determine  the 
preceding  estate."  2  It  is  true  these  were  the  consequences  in 
Beard  v.  Westcott,  but  they  were  also  the  precise  consequences 
of  the  decision  in  Crozier  v.  Crozier.  There  was  the  wife,  "a 
person  in  esse  entitled  to  take  according  to  the  words  of  the 
first  limitation  but  incapable  in  law;"  and  there  was  also  the 
eldest  son,  "a  remainder-man  in  esse  capable  of  taking  by  law 
but  incapable  of  taking  under  the  will,  because  the  contin- 
gency had  not  happened  which  was  to  determine  the  preceding 
estate,"  i.  e.  the  death  of  the  wife.  These  consequences  were 
not  deemed  objectionable  in  Crozier  v.  Crozier:  why  should 
they  have  been  in  Beard  v.  Westcott?3 

§  257.  The  doctrine  that  a  vested  limitation  or  a  limitation 
for  life  to  a  living  person  is  void  if  it  follows  an  interest  which  is 
too  remote,  cannot  be  traced  clearly  beyond  Beard  v.  Westcott,  in 
which  the  Courts  of  Common  Pleas  and  of  King's  Bench  came  to 

1  3  Dr.  &  W.  353.  might  have  taken  effect  at  too  re- 

1  P.  369.  mote  a  period.     As  to  Willson  p. 

»  In  Armstrong  v.  West,  8  IT.  Cobley,  [1870]  W.  N.  46,  see  48  L. 

Jur.  N.  8.  144,  the  limitation  over  T.  388. 


AND   ITS   COROLLARIES.  245 

opposite  conclusions.  As  it  introduces  an  arbitrary  element  into 
the  Rule  against  Perpetuities,  and  defeats  the  intentions  of 
testators  without  any  pretext  of  public  policy,  under  the  false 
pretence  of  supporting  them,  it  is  submitted  that  it  ought  not 
to  be  followed  in  America.1 

§  258.  As  the  existence  of  a  power  does  not  affect  the  vest- 
ing of  a  limitation  in  default  of  appointment,2  a  power  under 
which  only  appointments  that  may  be  too  remote  can  be  made, 
will  not  invalidate  limitations  in  default  of  appointment.3 
And  if  under  a  good  power  no  appointment  or  a  good  appoint- 
ment is  made,  the  fact  that  a  bad  appointment  might  have 
been  made  will  not  render  the  gift  in  default  of  appointment 
bad.4 

12.   Conflict  of  Laws. 

§  258  a.  When  from  statutory  changes 5  or  otherwise,  there 
is  a  different  law  on  the  subject  of  remoteness  in  one  jurisdic- 
tion from  that  which  prevails  in  another,  questions  may  arise 
under  the  Conflict  of  Laws. 

§  259.  Real  Estate.  When  the  title  to  land  situated  hi 
a  certain  jurisdiction  is  transferred,  either  inter  vivos  or  by 
will,  whether  the  transfer  be  direct  or  in  trust,  and  whatever 
be  the  domicil  of  the  grantor,  testator,  grantee,  devisee,  trustee, 
or  cestui  que  trust,  the  transfer  cannot  be  on  limitations  or 
trusts  which  the  law  of  that  jurisdiction  considers  too  remote, 
but  can  be  on  limitations  or  trusts  which  such  law  does  not 
consider  too  remote,  whatever  be  the  law  of  any  other  juris- 

1  Mr.    Lewis,   Perp.    421,   661,  2  See  §  112,  ante. 

states  distinctly  the  doctrine  here  3  Wollaston  v.  King,  L.  R.  8  Eq. 

maintained    as    law.      Singularly  165.    Re  Abbott,  [1893]  1  Ch.  54. 

enough,  however,  he  notices  in  this  See  In  re   Hobson's    Will,   [1907] 

connection  the  decision  of  Beard  v.  Viet.  L.  R.  724,  736,  737;   §   535, 

Westcott,  only  in  the  Court  of  Com-  post. 

mon  Pleas,  5  Taunt.  393,  and  not  in  *  In  re  Bowles  [1905]  1  Ch.  371. 

the  Court  of  King's  Bench,  5  B.  In  re  Davies  &  Kent's  Contract, 

&  Aid.  801.     See   1  Tiffany,  Real  [1910]  2  Ch.  35. 

Prop.    §  157;    1  Jarm.  Wills  (6th  *  As  to  which,  see  Appendices 

ed.)  352,  354.  B  and  C,  §§  686-773,  post. 


246  THE   RULE  AGAINST  PERPETUITIES 

diction.1  And  as  the  true  rule  is  that  immovables  are  governed 
by  the  lex  rei  sites,  whether  they  are  technically  real  estate  or 
not,  the  remoteness  of  a  conveyance  or  devise  of  a  term  for 
years  is  to  be  determined  by  the  law  of  the  place  where  the 
land  lies.2 

§  259  a.  In  Ellis  v.  Maxwell 3  an  English  testator  directed 
the  rents  of  his  Irish  estates  to  be  accumulated  and  "become 
a  part  of  his  personal  estate."  The  direction  for  accumula- 
tion was  in  violation  of  the  Thellusson  Act.4  It  was  held  that 
the  rents  of  the  estates  could  be  accumulated  as  directed,  the 
Act  not  applying  to  Ireland,  but  that  the  income  of  the  accu- 
mulated rents  could  not. 

§  260.  Personal  Property.  Direct  future  limitations  of  per- 
sonalty by  deed  are  not  allowed  in  England  or  in  North  Caro- 
lina,5 but  future  limitations  of  personalty  can  be  everywhere 
created  by  deed  through  the  means  of  a  trust. 

§  260  a.  Questions  arising  under  the  Conflict  of  Laws  con- 
cerning conveyances  of  personalty  inter  vivos  present  great 
theoretical  difficulties.  For  whereas,  in  bequests,  the  law  of 
the  testator's  domicil  is  undoubtedly  that  to  which  reference 
must  in  the  first  place  be  made,6  it  is  very  doubtful  what  is 

1  White    v.   Howard,   52    Barb.  »  So  held  by  Lord  Selborne,  C., 

294;  46  N.  Y.  144.    Knox  v.  Jones,  in  Freke  v.  Carbery,  L.  R.  16  Eq. 

47  N.  Y.  389.  Brewer  v.  Brewer,  11  461.    See  Duncan  v.  Lawson,  41  Ch. 

Hun,  147;  sub  nom.  Brewer  v.  Pen-  D.  394;  Goods  of  Gentili,  Ir.  R.  9 

niman,  72  N.  Y.  603.     Draper  t;.  Eq.  541;  De  Fogassieras  v.  Duport, 

Harvard  College,  57  How.  Pr.  269.  11  L.  R.  Ir.  123;  Dicey,  Confl.  of  L. 

Hobson  v.  Hale,  95  N.  Y.  588.    Lee  73.     The  contrary  was  decided  in 

v.  Tower,  124  N.  Y.  370.    Butler  v.  Despard  v.  Churchill,  53  N.  Y.  192, 

Green,  65  Hun,  99.    Trowbridge  v .  but  the  English  and  Irish  decisions 

Metcalf,  5  N.  Y.  Ap.  D.  318;  sub  seem  preferable.     Cf.  Chatfield  v. 

nom.    Trowbridge    v.    Trowbridge,  Berchtoldt,  L.  R.  7  Ch.  192;  Mac- 

158  N.  Y.  682.     Ford  v.  Ford,  70  phereon  v.  Stewart,  28  L.  J.  Ch. 

Wis.  19;  72  Wis.  621.    Penfield  v.  177;  32  L.  T.  R.  143. 

Tower,  1  N.  Dak.  216.    See  Fellows  •  12  Beav.  104. 

v.  Miner,  119  Mass.  541;  Wheeler  v.  «  39  &  40  Geo.  III.  c.  98. 

Fellowes,  52  Conn.  238;  Clarke's  *  §§  78,  92,  ante. 

Ap.,  70  Conn.  195;  Chaplin,  Suspen-  «  Cf.  Hewitt  v.  Green,  77  N.  J. 

sion  of  Alienation,  §§  517-522.    Cf.  Eq.  345,  362,  366. 
Mount  v.  Tuttle,  183  N.  Y.  358, 364. 


AND   ITS   COROLLARIES.  247 

the  proper  law  to  apply  in  cases  of  transfers  inter  vivos.1  There 
are  only  two  cases  of  a  transfer  inter  vivos  where  a  question 
as  to  the  Conflict  of  Laws  on  remoteness  has  actually  arisen. 

§  261.  The  first  is  Heywood  v.  Heywood.2  Here  upon  the 
marriage  in  Ireland  of  a  domiciled  Englishman  to  the  daughter 
of  a  domiciled  Irishman,  in  accordance  with  the  terms  of  the 
marriage  settlement,  which  was  drawn  and  executed  in  Ire- 
land, £3,000,  Irish  currency,  were  paid  to  the  trustees  of  the 
settlement  by  the  bride's  father,  to  accumulate  during  the 
lives  of  the  husband  and  wife.  The  Thellusson  Act 3  provides 
that  accumulation  under  a  settlement  shall  not  continue  longer 
than  the  life  of  the  settlor.  The  Act  does  not  extend  to  Ire- 
land. The  Master  of  the  Rolls  held  that  the  accumulation 
was  good  at  least  during  the  life  of  the  husband.  He  said  that 
if  the  husband  was  to  be  regarded  as  the  settlor,  accumulation 
during  his  life  was  lawful  under  the  Thellusson  Act,  and  that 
if  the  settlement  was  by  the  bride's  father,  it  "must  be  con- 
sidered as  an  Irish  settlement  by  a  domiciled  Irishman,"  in 
which  case  it  was  not  subject  to  the  Thellusson  Act.  Re- 
garding the  bride's  father  as  settlor,  the  settlor  was  an  Irish- 
man, the  marriage  took  place  in  Ireland,  the  settlement  was 
drawn  and  executed  in  Ireland,  and  the  money  was  paid  to  the 
trustees  in  Ireland.  It  does  not  seem  clear  to  which  of  these 
circumstances  it  is  due  that  the  case  was  considered  as  governed 
by  Irish  law.  Generally  a  marriage  settlement  is  governed  by 
the  law  of  the  matrimonial  domicil.4 

§  262.  The  other  case  is  Fowler's  Appeal.5  Here  a  resi- 
dent of  Chicago  by  deed  executed  in  Chicago  gave  certain 
Western  railroad  bonds  to  a  Philadelphia  Trust  Company  in 
trust  for  a  resident  of  Colorado  and  her  issue.  The  trust  deed 
contained  provisions  for  accumulation  which  were  invalid  by 
the  laws  of  Pennsylvania,  but  not  (it  was  assumed)  by  the 

1  Dicey,  Confl.  of  L.,  Rules  140-  2  29  Beav.  9. 

142,  pp.  530-537.       Cf.     Robb    v.  »  39  &  40  Geo.  III.  c.  98. 

Washington    &    Jefferson   College,  *  Dicey,  Confl.  of  L.  653. 

103  N.  Y.  Ap.  D.  327;  185  N.  Y.  *  125  Pa.  388. 
485. 


248  THE   RULE   AGAINST   PERPETUITIES 

law  of  Illinois  or  of  Colorado.  It  was  held  by  the  Supreme 
Court  of  Pennsylvania  that  the  provisions  for  accumulation 
were  valid.1 

§  263.  Coming,  then,  to  wills:  If  a  bequest  in  the  will  of 
A.  who  has  died  domiciled  in  State  X.,  is  given  to  B.  who  is 
resident  in  State  Y.,  the  limitations  or  trusts  upon  which  the 
legacy  is  given  may  be  too  remote  either  by  the  law  of  X.  or 
by  the  law  of  Y.;  if  they  are  too  remote  by  the  laws  of  both 
States,  or  of  neither,  cadit  qucestio. 

§  263  a.  Suppose  then,  first,  that  a  legacy  is  made  on 
limitations  or  trusts  which  are  valid  by  the  law  of  the  tes- 
tator's domicil,  but  are  too  remote  by  the  law  of  the  residence 
of  the  legatee  or  cestui  que  trust.  If  the  legacy  is  direct,  it  will 
be  valid;  the  residence  of  the  legatee  is  immaterial.  So  if  the 
legacy  is  in  trust  it  will  be  good;  the  residence  of  either  the 
trustee  or  the  cestui  que  trust  is  immaterial.2  A  change  of  res- 
idence by  the  trustee  or  cestui  que  trust  cannot  affect  the 
validity  of  the  trust.3 

§  263  6.  Suppose,  secondly,  that  a  legacy  is  given  on  limita- 
tions or  trusts  which  are  too  remote  by  the  law  of  the  tes- 
tator's domicil,  but  not  by  the  law  of  the  residence  of  the 
legatee.  Here,  according  to  the  general  rule  that  the  law  of 
the  testator's  domicil  must  govern,  the  limitations  or  trusts 
would  seem  to  be  invalid.4 

1  Sed  quaere.    See  §  725,  post.  the  law  of  the  domicil  forbids  such 

1  Cross  v.  U.  S.  Trust  Co.,  131  a  legacy  absolutely,  in  that  case 

N.  Y.  330.  Dammert  v.  Osborn,  the  legacy  is  void;  but  sometimes 

140  N.  Y.  30,  46;  141  N.  Y.  the  law  only  forbids  such  trusts 

564.  Cf.  Fellows  v.  Miner,  119  within  the  State  of  the  domicil,  and 

Mass.  541;  Despard  v.  Churchill,  then  the  legacy  is  good.  And  in 

53  N.  Y.  192.  this  latter  case  it  seems  that  the 

1  Whitney  v.  Dodge,  105  Cal.  trust  will  be  subject  to  the  law  of 

192.  See  De  Renne's  Estate,  12  the  other  jurisdiction,  for  instance, 

Weekly  N.  C.  (Pa.)  94.  as  to  investment  and  management. 

*  Hussey  v.  Sargent,  116  Ky.  Manicev.  Manice,43  N.  Y.  303,  387. 

53.  Matter  of  Huss,  126  N.  Y.  537. 

If  a  legacy  is  given  on  a  chari-  Hope  v.  Brewer,  136  N.  Y.  126.  St. 

table  trust  which  is  to  be  carried  out  John  v.  Andrews  Inst.,  117  N.  Y. 

in  another  jurisdiction,  sometimes  Ap.  D.  698;  191  N.  Y.  254.  Ken- 


AND   ITS   COROLLARIES. 


249 


§  264.  Conversion.  When  a  testator  directs  land  to  be  sold, 
or  personalty  to  be  invested  in  land,  the  laws  of  the  domicil 
and  of  the  situs  of  the  land  may  differ.  Suppose  land  is  settled 
or  devised  on  limitations  or  trusts  which  are  too  remote  accord- 
ing to  the  lex  rei  sites,  but  the  devise  is  accompanied  with  a 
direction  that  the  land  shall  be  sold  and  the  proceeds  held  as 
personalty  or  invested  in  land  in  a  State  where  such  limitations 
or  trusts  are  allowed,  is  such  settlement  or  devise  valid?  In 
the  case  of  Freke  v.  Carbery,1  Lord  Selborne,  C.,  held  that  it 
was  not.2 


nedy  v.  Palmer,  1  T.  &  C.  581. 
Mapes  v .  Home  Miss.  Soc.,  33  Hun. 
360.  Draper  v.  Harvard  College, 
57  How.  Pr.  269.  Vausant  v. 
Roberts,  3  Md.  119.  Whether  this 
extends  to  questions  of  remoteness 
does  not  seem  to  have  been  directly 
decided.  Such  questions  are  con- 
ceivable, but  are  not  likely  to  occur. 
See  Fordyce  v.  Bridges,  2  Phil. 
497,  515,  §  266  a,  post. 

If  the  law  of  the  other  jurisdic- 
tion forbids  such  charitable  trusts, 
the  legacy  is  void.  Catt  v.  Catt, 

118  N.  Y.  Ap.  D.  742.    But  if  such 
trusts   would   be   allowed   by   the 
law  of  the  domicil,  its  courts  will 
strive  to  give  effect  to  it  by  cy  pres 
or  otherwise;  see  Fellows  t;.  Miner, 

119  Mass.  541,  546. 

1  L.  R.  16  Eq.  461. 

2  And  the  same  seems  to  have 
been  held  in  Parkhurst  v.  Roy,  27 
Grant,  361;  7  Ont.  Ap.  614.     Cf. 
Anderson  v.  Kilborn,  13  Grant,  219. 
In  Macpherson  v.  Stewart,  28  L.  J. 
Ch.  177,  32  L.  T.  R.  143,  an  Eng- 
lish testator  gave  his  property  to 
trustees,   directing  them  to  place 
it  in  such  funds,  stocks,  or  securi- 
ties, either  in  Europe  or  India,  as 
they    might    deem    advisable,    in 
trust  to  make  certain  payments  to 


certain  persons,  and  on  their  death 
to  apply  the  fund,  with  all  accumu- 
lations, in  the  purchase  of  land  in 
Scotland,  to  be  strictly  entailed  on 
A.  The  Thellusson  Act  (39  &  40 
Geo.  III.  c.  98),  §  3,  provided  that 
nothing  in  the  Act  contained  should 
extend  "to  any  disposition  respect- 
ing heritable  property  within  that 
part  of  Great  Britain  called  Scot- 
land." Vice-Chancellor  Kinders- 
ley  held  (1)  that  during  the  lives 
named  the  Thellusson  Act  applied 
to  the  accumulations  of  income; 
and  (2)  that  during  this  period  the 
income  of  so  much  of  the  fund  as 
was  invested  in  Scotch  heritable 
bonds  formed  no  exception.  The 
first  holding  was  certainly  correct. 
The  second  holding  would  seem 
correct  also;  for,  First.  The  pro- 
visions for  investment  during  the 
life  interests  hardly  amounted  to 
a  direction  to  convert.  Second.  If 
Freke  v.  Carbery  is  correct,  a  trust 
as  to  converted  property  is  not 
good,  unless  it  would  be  good  as  to 
the  property  unconverted.  Third. 
If  Freke  v.  Carbery  is  not  correct, 
heritable  bonds,  though  considered 
heritable  property  in  Scotland, 
Bell's  Principles,  §  1485,  are  yet 
in  their  nature  movables,  and  it 


250  THE   RULE   AGAINST  PERPETUITIES 

§  265.  The  view  now  generally  adopted  in  America  is  that 
the  decision  of  the  question  must  depend  upon  whether  there 
is  an  immediate  absolute  equitable  conversion.  If  the  deed  or 
will  directs  such  immediate  absolute  conversion,  then  the  set- 
tlement or  devise  is  valid,  but  if  there  is  no  such  direction 
for  immediate  absolute  conversion,  the  devise  or  settlement 
is  invalid.1 

§  266.  The  American  doctrine  seems  preferable  to  that  of 
Lord  Selborne,  C.  In  Freke  v.  Carbery,  as  reported,  almost 
the  whole  attention  of  court  and  counsel  was  directed  to 
the  question  whether  leaseholds  were  governed  by  the 
lex  rei  sitce.  The  only  authority  cited  to  support  the  ruling 
as  to  conversion  was  Curtis  v.  Huiion?  In  this  case  land 
in  England  was  devised  to  be  sold,  and  the  proceeds  were 
directed  to  be  applied  for  the  maintenance  of  a  charity  in 
Scotland.  Sir  William  Grant,  M.  R.,  held  the  devise  bad. 
He  said:  "The  disinheriting  of  the  lawful  heirs  by  languish- 
ing or  dying  persons,  which  is  treated  by  the  Statute  as  a 
mischief,  cannot  be  less  so,  where  the  effect  is  to  carry  the 
property  out  of  England."  But  the  holding  of  real  or  per- 
sonal estate  hi  foreign  jurisdictions  on  remote  limitations, 
is  not  within  the  mischief  of  the  Rule  of  Perpetuities  of 
a  State,  which  is  only  concerned  with  property  within  that 
State.3 

should  seem,  out  of  Scotland,  ought  126.     Ford  v .  Ford,  80  Mich.  42. 

to  be  considered,  for  the  purpose  of  Ford  v.  Ford,  70  Wis.  19;  72  Wia. 

applying  the  Rule  against  Perpetui-  621.    Penfield  v.  Tower,  1  N.  Dak. 

ties,  as  movables;  just  as  leaseholds,  216.    The  case  of  Wood  v.  Wood,  5 

though  personal  property,  are  con-  Paige,   596,   is  probably  not  law. 

sidered  for  such  purpose  as  immov-  See  Chamberlain  v.  Chamberlain, 

ables.    See  §  259,  ante.  43  N.  Y.  424,  435;    Peabody   v. 

1  Clarke's  App.,  70  Conn.  195.  Kent,  153  N.  Y.  Ap.  D.  286.    See 

Draper    v.    Harvard    College,    57  also  App.  I,  §  916,  post. 
How.    Pr.   269.     Hobson  v.  Hale,  »  14  Ves.  537. 

95  N.  Y.  588.    Butler  v.  Green,  65  *  At  the  time  of  the  first  edition, 

Hun,  99.    Trowbridge  v.  Metcalf,  5  the  author  was  inclined  to  the  con- 

N.  Y.  Ap.  D.  318;  svb  nom.  Trow-  trary   opinion.     Freke  v.  Carbery 

bridge  v.  Trowbridge,   158  N.  Y.  is  doubted  in  1  Jarm.  Wills  (6th 

682.     Hope  v.  Brewer,  136  N.  Y.  ed.)  3. 


AND   ITS   COROLLARIES. 


251 


§  266  a.  In  Fordyce  v.  Bridges l  personal  property  was 
bequeathed  to  trustees  to  invest  in  either  English  or  Scotch 
estates,  the  Scotch  estates  to  be  settled  in  strict  Scotch  entail. 
Lord  Cottenham,  C.,  held  that  investments  could  be  made  in 
Scotch  estates.  It  was  objected  that  the  bequest  of  a  fund 
to  be  invested  in  a  regular  Scotch  entail  was  void  as  a  per- 
petuity, but  the  Chancellor  said:  "The  rules  acted  upon  by 
the  courts  hi  this  country  with  respect  to  testamentary  dis- 
positions tending  to  perpetuities  relate  to  this  country  only."2 

§  267.  When  a  testator  domiciled  in  one  State  directs 
land  situated  hi  another  State  to  be  sold  and  the  proceeds 
invested,  either  in  personalty  or  in  land,  in  the  State  of  his 
domicil,  on  trusts  which  are  illegal  by  the  law  of  the  latter 
State,  though  allowed  by  the  lex  situs,  such  trusts  are  void.3 


»  2  Phil.  497,  515. 

2  It  should  be  observed  that 
"  perpetuity "  is  here  used  in  the 
sense  of  an  unbankable  entail.  See 
§§  141  a-f,  ante. 

1  Hawley  v.  James,  7  Paige, 
213.  Bible  Soc.  v.  Pendleton,  7  W. 
Va.  79.  See  Ellis  v.  Maxwell,  12 
Beav.  104.  In  White  v.  Howard, 
52  Barb.  294,  46  N.  Y.  144,  a  Con- 
necticut testator  ordered  his  land 
in  th^t  State  to  be  sold,  and  the 
proceeds  invested  in  certain  speci- 
fied personal  securities,  or  in  real 
estate  in  New  York,  or  any  of  the 
New  England  States,  and  to  be 
held  on  trusts  which  were  good  in 
Connecticut  but  invalid  by  the  law 
of  New  York.  The  trustees  in- 
vested some  of  the  property  in  New 
York  lands.  It  was  held  that  the 
trusts  failed  as  to  these  lands  so 
purchased.  Certainly  land  in  New 
York  could  not  be  held  on  trusts 
illegal  by  the  law  of  that  State. 
But  it  would  seem  to  have  been 
improper  for  the  trustees  to  have 
invested  the  trust  fund  in  property 


which  could  not  be  held  on  the 
trust.  See  46  N.  Y.  166,  167. 

In  Jenkins  v.  Guarantee  Trust 
Co.,  53  N.  J.  Eq.  194,  a  Pennsyl- 
vania testatrix  gave  the  residue  of 
her  estate,  real  and  personal,  to  a 
Pennsylvania  trust  company,  in 
trust,  among  other  things,  to  pay 
a  legacy  to  a  Pennsylvania  charity. 
The  legacy  was  in  violation  of  the 
provisions  of  the  Pennsylvania 
Mortmain  Act.  The  testatrix  left 
property  in  Pennsylvania,  and  also 
land  in  New  Jersey.  The  Penn- 
sylvania property  was  insufficient 
to  pay  the  debts.  The  New  Jersey 
Court  of  Errors  and  Appeals  held 
that  the  legacy  was  void. 

Suppose  all  the  persons  inter- 
ested in  such  a  provision  as  is  given 
in  the  text  should  elect  to  take  the 
realty  unconverted,  could  they 
hold  against  the  heirs? 

On  the  doctrine  of  election  as 
applicable  to  the  questions  dis- 
cussed in  the  preceding  sections, 
see  Staples  v.  Hawes,  39  N.  Y.  Ap. 
D.  548. 


252  THE  BULB  AGAINST  PERPETUITIES. 


CHAPTER  VII. 
INTERESTS,  THOUGH  ALIENABLE,  MAY  BE  TOO  REMOTE. 

§  268.  As  has  been  said,1  the  tying  up  of  property  was 
attempted  in  two  ways,  first,  by  making  vested  estates  in- 
alienable, and  when  the  judges  stopped  this,  then  by  the 
creation  of  indestructible  future  contingent  estates;  and,  to 
restrain  these  last,  the  Rule  against  Perpetuities  was  devised. 
The  tying  up  of  property  is  therefore  restrained,  as  to  present 
estates,  by  making  them  alienable,  and,  as  to  future  estates, 
by  subjecting  them  to  the  Rule  against  Perpetuities.  Since 
the  original  purpose  of  the  Rule  against  Perpetuities  was  to 
restrain  one  mode  of  tying  up  estates,  it  would  not  have  been 
inconsistent  with  that  purpose  to  have  held  that  contingent 
interests,  if  alienable,  did  not  come  within  the  Rule,  but,  as 
will  appear  in  this  chapter,  the  Rule  has  been  extended  so  as 
to  cover  all  future  interests  whether  alienable  or  not,  and  this 
extension,  though  not  a  logically  necessary  consequence  of  the 
establishment  of  the  rule,  is  now  well  settled,  and  it  is  a  rea- 
sonable extension.  If  there  is  a  gift  over  of  an  estate  on  a 
remote  contingency,  the  market  value  of  the  interest  of  the 
present  owner  will  be  greatly  reduced,  while  the  executory 
gift  will  sell  for  very  little,  or,  in  other  words,  the  value  of 
the  present  interest  plus  the  value  of  the  executory  gift  will 
fall  far  short  of  what  would  be  the  value  of  the  property  if 
there  were  no  executory  interest.  Further,  if  the  owner 
of  the  present  interest  wishes  to  convey  an  absolute  fee,  the 
holder  of  the  executory  gift  can  extort  from  him  a  price  which 
greatly  exceeds  what  it  ought  to  be,  if  based  on  the  chance  of 

1  §  140  et  seq.,  ante. 


ALIENABLE,    YET   REMOTE,    INTERESTS.  253 

his  succeeding  to  the  property.1  And  again,  just  as  it  has 
been  for  centuries  the  policy  of  our  law  to  allow  a  man  full 
power  of  disposition  of  his  property,  under  the  belief  that 
thereby  the  activity  of  the  owner  will  be  increased  and  the 
public  benefited,  so  it  is  against  public  policy  to  allow  such 
activity  to  be  diminished  by  the  fear  of  losing  the  property 
on  a  future  contingency;  and  while  near  future  interests 
may  be  desirable  modifications  of  ownership,  remotely  con- 
tingent interests  are  likely  to  diminish  the  activity  in  own- 
ership to  an  extent  greater  than  any  advantages  which  will 
follow  from  allowing  them.  To  put  it  in  other  words,  it  is 
desirable  that  a  man's  motives  to  make  the  most  of  his  prop- 
erty should  not  be  diminished  by  the  danger  of  losing  it  on  a 
future  contingency;  on  the  other  hand  each  generation  should 
have  the  power  of  providing  for  those  who  come  immediately 
after  it  in  the  way  it  thinks  best  by  limiting  the  interests  given 
them;  and  the  Rule  against  Perpetuities,  as  extended,  is  the  line 
which  the  law  has  laid  down  so  as  to  give  both  these  desirable 
objects  a  reasonable  field  without  encroaching  on  the  other. 

§  269.  It  has  been  sometimes,  and  indeed  often,  said  that 
if  future  interests  can  be  alienated  or  released,  they  cannot  be 
too  remote,  and  that  the  Rule  against  Perpetuities  is  aimed 
only  at  such  limitations  as  tie  up  property,  and  take  it  abso- 
lutely out  of  commerce.  Every  executory  devise  was  said,  by 
Powell,  J.,  in  Scatterwood  v.  Edge,2  to  be  "a  perpetuity  as 
far  as  it  goes,  that  is  to  say,  an  estate  unalienable,  though  all 
mankind  join  in  the  conveyance;"  and  this  definition  of  a 
perpetuity  has  been  frequently  cited  in  the  cases,  and  has 
been  laid  hold  of  in  support  of  the  view  that  conditions  are 
free  from  the  restraints  of  the  Rule.3  But  without  going  here 

1  See    1    Tiffany,    Real    Prop.  Brattle  Square  Church  v.  Grant,  3 

§  152.  Gray,  142,  148,  "in  which  a  single 

*  1  Salk.  229.  ambiguous    or    inaccurate    expres- 

3  See  also  Keppell  v.  Bailey,  2  sion  has  sometimes  led  to  a  mis- 

Myl.  &  K.  517,  527,  528  (cf.  Challis,  understanding  of  the  law  intended 

Real  Prop.  (3d  ed.)  184);  Gooch  v.  to  be  stated."    Winsor  v.  Mills,  157 

Gooch,  3  De  G.  M.  &  G.  366,  384;  Mass.  362, 365;  8  Jur.pt.  2, 284,  note. 


254  THE   RULE  AGAINST  PERPETUITIES. 

into  disputed  questions,  it  is  clear  that  the  Rule  applies  to 
cases  where  there  is  no  tying  up  of  property.  For  instance, 
suppose  real  and  personal  property  are  given  to  trustees  and 
their  heirs,  with  full  power  of  changing  investments,  but  upon 
trusts  which  may  arise  more  than  twenty-one  years  after  lives 
in  being,  such  trusts  are  void,  yet  no  property  is  tied  up.1 
But,  further,  conditional  limitations  may  be  bad  for  remoteness, 
though  they  are  releasable  or  alienable.2  It  is  true  that  a  con- 
ditional limitation  to  an  uncertain  person  cannot  be  released 
because  there  is  no  one  to  release  it;  but  when  a  conditional 
limitation  is  to  a  known  person  and  his  heirs,  and  the  contin- 
gency is  only  in  the  happening  of  the  event  on  which  the  con- 
ditional limitation  is  to  take  effect,  it  may  be  released  (or,  if 
equitable,  either  released  or  assigned);  yet  if  such  event  may 
occur  more  than  twenty-one  years  after  lives  in  being,  the  con- 
ditional limitation  is  too  remote.  Thus  a  bequest  of  personalty 
is  too  remote  if  to  take  effect  after  the  failure  of  issue  of  A.,  either 
to  a  living  person s  or  to  a  corporation.4  So  a  conditional  lim- 
itation of  real  estate  may  be  too  remote,  although  made  to  a 
living  person  in  fee.5  In  like  manner,  if  the  persons  to  whom  a 
gift  is  made  may  not  be  ascertained  within  the  required  limits, 
the  gift  is  too  remote,  although  the  class  to  which  they  belong 
must  be  determined  within  those  limits,  and  a  conveyance 
by  the  whole  class  would  pass  the  entire  interest.6  It  may 

1  4  Kent,  Com.  (12th  ed.)  283.  Ch.  D.  156.   Brattle  Square  Church 

Wheeler  v.  Fellowes,  52  Conn.  238,  v.  Grant,  3  Gray,  142.    Society  for 

244.  Theological  Education  v.  A.  G.,  135 

*  "The   possibility  or   impossi-  Mass.  285.     Winsor  v.  Mills,  157 
bility  of  obtaining  releases  is  not  Mass.  362. 

the  test  by  which  to  determine  the  *  See  cases  cited  hi  §  277,  post. 

validity  or  invalidity  of  a  limita-  See  also  Marsden,  Perp.  c.  3;  San- 

tion."  Winsor  v.  Mills,  157  Mass.  ders  on  Uses  (5th  ed.),  203,  204; 

362,  366.  London  &  S.  W.  R.  Co.  v.  Gomm, 

1  Grey  v.  Montagu,  2  Eden,  205;  20  Ch.  D.  562,  573-575  (explain- 

3  B.  P.  C.  (Toml.  ed.)  314.  ing  Washborn  v.  Downs,  1  Ch.  Gas. 

4  Johnson's  Trusts,  L.  R.  2  Eq.  213);  Curtis  v.  Lukin,  5  Beav.  147; 

716.  §  675,  post. 

*  Brown  &  Sibly's  Contract,  3 


ALIENABLE,   YET  REMOTE,   INTERESTS.  255 

be  said  that  although  an  executory  devise  can  be  released, 
it  cannot  be  assigned  to  a  stranger.  But  it  can  be  released  to 
the  owner  of  the  present  estate,  and  he  can  convey  a  fee,  — 
that  is,  the  two,  by  joining,  can  convey  an  absolute  estate,  — 
and  therefore  the  case  does  not  come  within  Powell's  definition. 
Besides,  an  equitable  executory  interest  can  be  assigned  to  a 
stranger,  yet  the  Rule  applies  equally  to  such  interests  as  to 
legal  estates.1  Again,  modern  statutes  have  very  generally 
made  legal  executory  interests  alienable  as  well  as  releasable;2 
but  this  has  made  no  change  in  the  Rule  against  Perpetuities.3 

§  270.  There  were,  however,  three  decisions  which  seemed 
opposed  to  this:  Gilbertson  v.  Richards,4  Birmingham  Canal 
Co.  v.  Cartwright,5  and  Avern  v.  Lloyd.6 

§  271.  In  Gilbertson  v.  Richards  7  there  was  a  mortgage  to 
H.  to  secure  the  payment  of  £5,000,  the  equity  of  redeeming 
which  was  in  B.  The  mortgage  deed,  made  in  1838,  declared 
that  if  there  was  any  default  in  payment  of  the  £5,000,  H. 
might  sell  and  dispose  of  the  land,  and  contained  a  proviso 
that  if  the  mortgagee  or  any  persons  claiming  by,  through,  or 
under  him  should,  by  virtue  of  any  power  therein  contained, 
enter  upon  or  otherwise  become  possessed  of  the  land,  the  land 
should  immediately  become  charged  with  a  rent  of  £40  in 
favor  of  B.  There  was  a  default,  and  in  1847  H.  sold  the 
land.  B.  contended  that  thereupon  the  rent  arose;  the  pur- 
chaser contended  that  the  provision  for  its  creation  was  void 
for  remoteness.  The  Court  of  Exchequer  held  that  the  rent 
was  duly  created.  They  said:  "It  seems  to  be  an  error  to  call 
this  rent  a  perpetuity,  in  an  illegal  sense.  It  is  vested  in 
Thomas  Billings  and  his  heirs.  He  or  his  heirs  may  sell  it, 
or  release  it,  at  their  pleasure.  A  rent  in  fee  simple  may  be 

»  See    Gray    v.    Montagu    and  4  4  H.  &   N.  277;  5  H.  &  N. 

Johnson's  Trusts,   ubi  supra,   and  453. 

the  cases  cited  in  §  277,  post.  ,§  11  Ch.  D.  421. 

1  For  instance,  8  &  9  Viet.  c.  •  L.  R.  5  Eq.  383. 

106,  §  6.  '  4  H.  &  N.  277. 

»  Lewis,   Suppl.    13-20.     Mare- 
den,  Perp.  66. 


256  THE  RULE  AGAINST  PERPETUITIES. 

granted  to  a  man  and  heirs  to  continue  forever.  Why,  therefore, 
may  not  one  be  granted  to  commence  at  any  time  however  re- 
mote? It  is  only  a  part  of  the  estate  in  fee  simple  of  the  rent. 
A  perpetuity  arises  when  a  rent  is  granted  to  a  person  who 
may  not  be  in  esse  until  after  the  line  of  perpetuity  be  passed; 
but  when  the  estate  in  the  rent  is  vested  in  an  existing  person 
and  his  heirs  in  fee  simple,  who  may  deal  with  it  at  his  or 
their  pleasure,  and  as  he  or  they  think  fit,  we  think  it  is  not  sub- 
ject to  the  objection  of  remoteness,  notwithstanding  that  its 
actual  enjoyment  may  depend  upon  a  contingency  which  may 
never  happen,  or  may  happen  at  any  time  however  distant."  l 

§  272.  But  the  Court  of  Exchequer  Chamber,  to  which  the 
case  was  carried,2  rested  the  decision,  not  on  the  fact  that  the 
mortgagors  could  release  their  right  to  the  rent  charge,  but  on 
the  ground  that  the  case  was  analogous  to  that  of  a  power  of 
sale  in  a  mortgage.  They  said:  "The  real  effect  of  the  limi- 
tations in  the  deed  before  us  is,  that  the  mortgagees  are  to  take 
possession  or  sell,  subject  to  the  payment  of  this  rent  to  Bil- 
lings. It  is  a  restriction  on  the  amount  of  the  estate  of  the 
mortgagees,  and  seems  within  the  cases  as  to  the  power  of 
sale  in  a  mortgagee,  which,  as  incidental  to  his  estate,  is  held 
not  to  be  within  the  Rule  as  to  Perpetuities."  3  So  Lord 
St.  Leonards,4  after  saying  that  the  distinction  taken  by  the 
Court  of  Exchequer  was  not  necessary  for  the  decision  of  the 
case,  adds:  "No  perpetuity  was  created  by  the  power  of  sale 
in  the  mortgagees,  or  by  the  right  of  them  or  their  heirs  to 
take  possession  of  the  land,  but  in  exercising  that  right  they 
took,  subject  to  a  perpetual  rent  of  £40  a  year,  in  favor  of  the 
mortgagor.  It  was  a  charge  on  the  estate  and  had  no  tendency 
to  a  perpetuity."  5 

§  273.  The  Court  of  Exchequer  Chamber,  however,  did  not 
distinctly  repudiate  the  doctrine  of  the  Exchequer.  They  said : 

1  4  H.  &  N.  297,  298.  8  And    see  Williams    on  Settle- 

*  5  H.  &  N.  453.  ments,  31,  32;  Mareden,  Perp.  248; 

»  5  H.  &  N.  459.  Chap.  XVI.,  post,  on  Mortgages. 
4  Sugd.  Pow.  (8th  ed.)  16. 


ALIENABLE,   YET  REMOTE,   INTERESTS.  257 

"  There  may  be  considerable  doubt  also  on  the  point  raised  by 
counsel,  whether  the  Rule  as  to  Perpetuities  applies  to  a  case 
like  the  present,  where  the  party  who  or  whose  heirs  are  to 
take  is  ascertained,  and  who  can  dispose  of,  release,  or  alienate 
the  estate,  either  at  common  law  or  at  all  events  since  the 
passing  of  8  &  9  Viet.  c.  106,  §  6."  l 

§  273  a.  Perhaps  Gilbertson  v.  Richards  may  be  supported 
on  the  ground  that  the  future  right  to  the  £40  annually  was 
not  a  right  of  property,  but  simply  a  contract  obligation.  A 
contract  right,  as  such,  is  certainly  not  subject  to  the  Rule 
against  Perpetuities.2  A  rent  charge  is  a  right  to  a  sum  of 
money  which  can  be  enforced  by  distraint  on  certain  land. 
The  right  to  distrain  is  simply  a  remedy,  and  perhaps  fairly 
enough  to  be  considered  not  a  right  in  property,  and  therefore 
not  within  the  purview  of  the  Rule  against  Perpetuities.  In 
Morgan  v.  Davey5  a  lessee  covenanted  for  himself,  his  heirs 
and  assigns,  to  pay  certain  sums  "by  way  of  rent  charge  or 
royalty  or  reservation"  if  he  should  mine  coal.  Mathew,  J., 
at  nisi  prius,  ruled,  on  the  authority  of  Gilbertson  v.  Richards, 
that  this  covenant  was  not  within  the  Rule  against  Perpetui- 
ties. Except  so  far  as  it  created  a  rent  charge,  it  certainly 
was  not  subject  to  the  Rule.  Even  viewed  as  creating  a  rent 
charge,  it  may  be  sustained  on  the  ground,  above  suggested, 
that  it  gave  merely  a  remedy  and  not  a  right  of  property.4 

§  274.  The  case  of  Birmingham  Canal  Co.  v.  Cartwright 5 
was  a  clear  decision  that  an  executory  interest  which  could  be 
released  was  not  within  the  Rule  against  Perpetuities.  The 

1  5  H.  &  N.  459.  The  section  Rule  against  Perpetuities  deals 

of  the  statute  referred  to  provides  with  the  substance  of  things.  Does 

that  executory  and  contingent  in-  the  right  to  distrain  on  land  in 

terests  in  realty  may  be  disposed  order  to  enforce  a  right  in  personam 

of  by  deed.  make  that  right  a  right  in  remt 

1  §  329,  post.  A   question   not   easy   to   answer. 

3  1  Cab.  &  El.  114.  The  distinction  between  substan- 

4  Rents   charge   have  generally  tive  rights  and  remedies  is  some- 
been  dealt  with  in  the  common  law  times  hard  to  draw.     See  §  303, 
together   with   property,    and   not  post. 

simply    as    obligations.     But    the          B  11  Ch.  D.  421. 


258  THE   RULE   AGAINST   PERPETUITIES. 

vendor  of  lands,  reserving  the  mines,  covenanted  with  the 
vendee  that  should  he  ever  sell  the  mines  under  adjoining 
land,  he  would  sell  the  reserved  mines  to  the  vendee  at  the 
same  rate  as  that  at  which  he  should  have  sold  the  adjoining 
mines.  Fry,  J.,  held  that  the  covenant  was  not  obnoxious  to 
the  Rule  against  Perpetuities,  and  that  specific  performance 
could  be  enforced  by  the  assigns  of  the  vendee  against  the 
devisees  of  the  vendor.  The  learned  judge  said:  "I  think 
that  wherever  a  right  or  interest  is  presently  vested  in  A. 
and  his  heirs,  although  the  right  may  not  arise  until  the  hap- 
pening of  some  contingency  which  may  not  take  effect  within 
the  period  defined  by  the  Rule  against  Perpetuities,  such 
right  or  interest  is  not  obnoxious  to  that  Rule,  and  for  this 
reason.  The  Rule  is  aimed  at  preventing  the  suspension 
of  the  power  of  dealing  with  property,  —  the  alienation  of 
land  or  other  property.  But  when  there  is  a  present  right 
of  that  sort,  although  its  exercise  may  be  dependent  upon  a 
future  contingency,  and  the  right  is  vested  in  an  ascertained 
person  or  persons,  that  person  or  persons,  concurring  with  the 
person  who  is  subject  to  the  right,  can  make  a  perfectly  good 
title  to  the  property.  The  total  interest  in  the  land,  so  to 
speak,  is  divided  between  the  covenantor  and  the  covenantee, 
and  they  can  together  at  any  time  alienate  the  land  absolutely. 
I  think  that  Gilbertson  v.  Richards  is  a  distinct  authority  in 
favor  of  that  conclusion."  1 

§  275.  But  Birmingham  Canal  Co.  v.  Cartwright  has  been 
overruled,  and  the  true  doctrine  clearly  stated  by  the  Court 
of  Appeal  in  London  &  S.  W.  R.  Co.  v.  Gomm?  In  that  case 

1  11  Ch.  D.  432,  433.    In  Col-  lessee,  his  executors,  administrators, 
lison   v.  Lettsom,  6   Taunt.    224,  or  assigns,  should  have  a  right  of 
there  came  in  question  a  covenant  pre-emption.    The  Court  held  that 
in  a  lease  for  a  term  of  twenty-  there  had,  in  fact,  been  no  breach 
eight  years,   by  which  the  lessor  of  the  covenant.   Whether  the  cove- 
covenanted  that  if  he,  his  heirs  or  nant  was  too  remote  or  not  was 
assigns,   should,   during  the  term,  not  mooted, 
have  an  advantageous  offer  to  dis-  *  20  Ch.  D.  562. 
pose  of  certain  adjoining  land,  the 


ALIENABLE,   YET  REMOTE,   INTERESTS.  259 

the  plaintiff  company  in  1865  conveyed  land  to  Powell  in  fee, 
and  Powell  covenanted  with  the  company  that  he,  his  heirs 
or  assigns,  would,  at  any  time,  on  receipt  of  £100,  reconvey 
the  land  to  the  company.  In  1879  Gomm  purchased  the  land 
from  Powell  with  notice  of  the  covenant,  and  in  1880  the 
company  demanded  a  conveyance,  and,  upon  Gomm's  refusal, 
brought  a  bill  for  specific  performance.  Kay,  J.,  discussed 
the  cases  very  fully,  and  declared  that  he  was  unable  to  agree 
with  what  had  been  said  in  Gilbertson  v.  Richards  and  Bir- 
mingham Canal  Co.  v.  Cartwright.  "In  my  opinion,"  he  said, 
"a  present  right  to  an  interest  in  property  which  may  arise 
at  a  period  beyond  the  legal  limit  is  void,  notwithstanding 
that  the  person  entitled  to  it  may  release  it."  l  The  learned 
judge,  however,  thought  that  the  Rule  against  Perpetuities 
was  "a  branch  not  of  the  law  of  contract  but  of  property." 
"A  contract  not  creating  any  estate  or  interest  properly  so 
called  in  property,  at  law  or  equity,  is  not,  in  my  opinion 
obnoxious  to  the  Rule;"2  and  as  the  covenant  in  this  case  did 
not  run  with  the  land  at  law,  and  a  purchaser  without  notice 
would  not  be  bound  by  it,  he  thought  it  was  not  within  the 
Rule  against  Perpetuities  at  all,  and  made  a  decree  for  spe- 
cific performance.  Gomm  appealed.  The  Court  of  Appeal 
(Jessel,  M.  R.,  Sir  James  Hannen,  and  Lindley,  L.  J.  J.),  re- 
versed the  decree.  The  Court  held  that  the  option  to  purchase 
gave  an  equitable  interest  which  was  within  the  Rule  against 
Perpetuities,  and  that  judged  by  that  Rule  it  was  void.3  The 
Master  of  the  Rolls  said 4  he  considered  that  Mr.  Justice  Kay 

1  20  Ch.  D.  573.  Edwards,  [1909]  A.  C.  275;  Hardy 

J  20  Ch.  D.  575.  t».  Galloway,  111  N.  C.  519;  Starcher 

3  So  Trevelyan  v.  Trevelyan,  53  Brothers  v.  Duty,  61  W.  Va.  373^ 

L.  T.  R.  853;   Woodall  v.  Clifton,  Redington  v.  Browne,  32  L.  R.  Ir. 

[1905]  2Ch.  257;  Worthing  Corpora-  347,  358,  359;  Switzer  v.  Rochford, 

tion  v.  Heather,  [1906]  2  Ch.  532;  [1906]  1  I.  R.  399;   In  re  Tyrrell's 

Kauri  Timber  Co.  v.  District  Land  Estate,  [1907]  1 1.  R.  194,  292;  In  re 

Registrar,  21  N.  Z.  L.  R.  84.     See  Doyle's  Estate,  [1907]  1  I.  R.  204; 

Mackenzie  v.  Childers,  43  Ch.  D.  Hasker  v.  Summers,  10  Viet.  L.  R. 

265,  279;  Savill  Brothers  v.  Bethell,  Eq.  204,  210. 
[1902]  2  Ch.  (C.  A.)  523;  Edwards  v .          *  20  Ch.  D.  582. 


260  THE   RULE   AGAINST   PERPETUITIES. 

was  "quite  right  in  the  view  he  takes  of  the  doctrine  of  re- 
moteness and  of  the  authorities  cited  before  him,  not  for- 
getting the  case  of  the  Birmingham  Canal  Co.  v.  Cartwright, 
which  must  be  treated  as  overruled,"  and  that  he  had  "most 
correctly  and  accurately  defined  the  law,"  but  that  he  was  in 
error  in  thinking  that  the  covenant  did  not  create  any  interest 
in  land.1 

§  275  a.  Winsor  v.  Mills,2  following  the  case  of  London  & 
S.  W.  R.  Co.  v.  Gomm,  held  that  an  option  in  M.,  his  heirs 
and  assigns  to  purchase  land  was  too  remote;  and  previous 
inaccurate  dicta  were  corrected.3  To  the  same  effect  are  Starcher 
Brothers  v.  Duty*  and  Barton  v.  Thaw.5 

§  276.  The  third  case  which  favored  the  idea  that  an  alien- 
able interest  cannot  be  too  remote  was  Avern  v.  Lloyd.6  In 
that  case  there  was  a  bequest  of  personal  property  to  A.  for 
life,  and  after  A.'s  death  to  his  issue  for  Me,  and  to  the  executors, 
administrators,  and  assigns  of  the  survivor.  Stuart,  V.  C.,  held, 
rightly  it  would  seem,  that  it  was  intended  to  give  the  absolute 
interest  to  the  survivor;  but  he  went  on  to  say:  "Each  of  the 
tenants  for  life  in  this  case  had  as  much  right  to  alien  his  contin- 
gent right  to  the  absolute  interest  as  to  alien  his  life  estate; 
and  the  person  claiming  under  an  assignment  of  the  whole 
estate  and  interest  of  the  tenant  for  life  would,  as  soon  as 
his  assignor  became  the  survivor  of  the  other  tenants  for 

1  See    Kenrick    v.   Dempsey,  5  *  It  is  to  be  regretted  that  this 

Grant,  584;  §  485,  post.  case,  while  clearing  the  law  con- 

An  agreement  for  sale  is  not  cerning  remoteness  from  prevalent 
void  because  it  does  not  limit  the  misconceptions,  contained  dicta  on 
time  within  which  the  agreement  is  the  invalidity  of  provisions  restrain- 
to  be  carried  out;  the  vendee  has  ing  a  trustee  from  selling  without 
an  immediate  equitable  interest.  the  consent  of  the  cestuis  que  trust 
In  re  Doyle's  Estate,  [1907]  1  Ir.  which  were  of  very  questionable 
204.  soundness.  But  this  has  now  been 

On  the  question  whether  on  a  set  straight  in  Howe  v.  Morse,  174 

personal  contract  to  convey  an  in-  Mass.  491.     See  §§  509  m,  509  n, 

terest   on   property   which   is   too  post. 

remote  a  recovery  can  be  had,  see  4  61  W.  Va.  373. 

5  330  et  seq.,  post.  •  41  Pa.  C.  C.  396. 

1  157  Mass.  362.  •  L.  R.  5  Eq.  383. 


ALIENABLE,   YET  BEMOTE,   INTERESTS.  261 

life,  be  entitled  to  the  possession  and  enjoyment  as  absolute 
owner.  It  seems  obvious  that  such  a  case  is  not  within  the 
principle  on  which  the  law  against  perpetuity  rests,  and  that 
the  limitation  in  question  of  the  absolute  interest  does  not  fail 
as  being  too  remote. " 

§  277.  But l  in  Edmondson's  Estate,2  the  report  of  which, 
before  Wood,  V.  C.,  immediately  follows  that  of  Avern  v. 
Lloyd,  it  was  conceded  that  limitations  over  to  the  survivors 
of  a  class  who  must  all  have  been  born  within  a  life  in  being 
were  too  remote,  although  if  the  whole  class  had  joined  in  a 
conveyance  they  could  have  made  a  good  title.  The  Vice- 
Chancellor  said  that  "of  course"  the  gift  over  was  void  for 
remoteness.  In  Hobbs  v.  Parsons3  Stuart,  V.  C.,  himself 
had  held  that  after  a  bequest  to  the  testator's  grandchildren 
a  gift  over,  if  any  one  of  them  died  under  twenty-two,  to  the 
survivors  or  survivor  was  void.  Yet  all  the  grandchildren 
could  have  made  a  good  title.  And  also  in  Courtier  v.  Oram  * 
and  Garland  v.  Brown 5  limitations  to  survivors  were  held  too 
remote,  although  the  class  to  which  the  survivors  belonged 
could  have  made  a  good  conveyance,  and  must  have  been 
determined  within  a  life  in  being.  But  further  than  this 
there  are  very  many  cases  in  which  a  gift  to  such  of  the  children 
of  a  living  person  as  reach  some  age  greater  than  twenty-one 
have  been  held  too  remote.6  It  is  true  that  in  such  cases  all 
the  children  could  not  convey  a  good  title,  because  none  of 
them  might  reach  the  prescribed  age;  but  all  the  children, 
together  with  the  heirs,  next  of  kin,  or  residuary  legatees  of  the 
testator,  who  would  take  should  none  of  the  children  reach 
that  age,  could  make  a  good  title.  All  the  modern  English 
text-writers  have  condemned  Avern  v.  Lloyd,"1  and  it  has 

1  As  pointed  out  in  Williams,          7  See  Williams,  Settlements,  32, 

Settlements,  33.  33;   1  Jarm.  Wills   (6th  ed.)  305, 

1  L.  R.  5  Eq.  389.  350;  Theob.  Wills   (7th  ed.)  603, 

1  2  Sm.  &  G.  212.  604;  Mareden,  Perp.  178;  45  L.T. 

4  21  Beav.  91.  R.  339.    See  also  Curtis  v.  Lukin,5 

4  10  L.  T.  R.  292.  Beav.  147.    Cf.  Stuart  v.  Cockerel! 

«  See  §§  372-374,  post.  L.  R.  7  Eq.  363,  368,  369. 


262  THE   RULE   AGAINST  PERPETUITIES. 

now  been  expressly  overruled  by  the  Court  of  Appeal  in  Re 
Hargreaves.1 

§  278.  A  remark  seems  here  in  place.  There  are  two  prop- 
ositions which  are  often  confounded,  but  which  are,  in  truth, 
distinct. 

First.  Future  contingent  interests,  if  alienable,  are  not  sub- 
ject to  the  Rule  against  Perpetuities. 

Second.  The  Rule  against  Perpetuities  is  directed  at  pre- 
venting a  suspension  of  alienation  of  present  interests. 

Both  propositions  are  erroneous,  —  but  in  a  very  different 
degree. 

To  subject  future  contingent  interest  presently  alienable  to 
the  Rule  against  Perpetuities  is  an  extension  of  the  Rule  beyond 
the  needs  which  gave  it  birth.  The  extension  is  well  settled  and 
reasonable,  as  is  shown  hi  this  Chapter,  but  it  is  not  necessary. 

But  to  suppose  that  the  Rule  against  Perpetuities  is  needed 
to  restrain  a  suspension  of  alienation,  or  that  present  interests 
in  property  might  be  made  inalienable  were  it  not  for  the  Rule, 
is  to  throw  the  fundamentals  of  the  law  into  confusion. 

§  278  a.  The  fullest  and  ablest  presentation  of  the  view 
that  future  contingent  interests,  if  alienable,  ought  not  to  be 
subject  to  the  Rule  against  Perpetuities,  is  to  be  found  in  Pro- 
fessor Reeves's  Treatise  on  Special  Subjects  of  the  Law  of  Real 
Property,  Boston,  1904.2  Professor  Reeves  argues  that  there  is 
no  sufficient  justification  for  the  extension  of  the  Rule  to  cover 
alienable  contingent  future  interests;  and  that,  as  an  original 
question,  such  interests  should  not  be  subject  to  the  Rule.  He 
contends  that  the  provisions  of  the  New  York  Revised  Statutes 
touching  these  matters,  which  are  based  on  the  conception  of 
"suspension  of  alienation,"  are  more  consonant  with  what  was 

1  43  Ch.  D.  401,  followed  in  In  no    future    estate.      The    opinion 

re  Ashforth,  [1905]  1  Ch.  535,  541,  shows  the   confusion  of  ideas  re- 

where  Farwell,    J.,    says:    "Three  f erred  to  in  the  following  section, 
void    contingent    remainders    will  *  And  now  cf .  an  article  by  Mr. 

not    make    one    good    vested    re-  Charles  Sweet,  18  Jurid.  Rev.  132, 

mainder."     In   Stevens   v.    Annex  138,  139. 
Realty  Co.,  173  Mo.  511,  there  was 


ALIENABLE,   YET  REMOTE,    INTERESTS.  263 

the  original  object  and  with  what  should  be  the  true  extent  of 
the  Rule. 

§  278  6.  The  difficulty  lies  here.  If  by  "suspension  of 
alienation"  is  meant  suspension  of  alienation  through  future 
interests,  —  and  this  is  the  meaning,  it  would  seem,  which 
Professor  Reeves  attaches  to  it,  —  then,  according  to  his  view, 
as  well  as  according  to  the  common  view,  the  Rule  against 
Perpetuities  is  aimed  at  the  control  of  future  estates,  and 
should  appropriately  be  called  the  Rule  against  Remoteness. 
The  only  difference  between  the  two  views  is  that  by  one, 
future  interests  alienable  in  prcesenti  are  considered  too  re- 
mote; and  by  the  other,  they  are  not. 

§  278  c.  An  interest  void  for  remoteness  is  an  interest  whose 
invalidity  arises  from  its  being  a  future  and  not  a  present 
interest.  Not  all  future  interests  are  remote.  Thus  everyone 
agrees  that  an  interest  presently  vested  is  not  remote;  that  an 
interest  vesting  within  twenty-one  years  after  lives  in  being  is 
not  remote;  that  an  interest  destructible  by  the  owner  of  the 
present  interest  is  not  remote.  If  Professor  Reeves's  view  were 
correct,  it  would  only  mean  that  we  should  have  to  add  that 
an  interest  alienable  or  releasable  presently  or  within  twenty-one 
years  after  lives  in  being  is  not  remote.  The  conception  of 
the  Rule  against  Perpetuities  as  applying  solely  to  future  and 
never  to  present  interests  would  not  be  changed. 

§  278  d.  But  the  phrase  "suspension  of  alienation"  and  still 
more  "restraint  of  alienation"  includes  the  suspension  or  re- 
straint of  alienation  of  present  interests  by  direct  provisions, 
and,  therefore,  when  it  is  said  that  the  Rule  against  Perpetuities 
is  aimed  at  the  suspension  or  restraint  of  alienation,  it  is  natural 
to  suppose  that  the  Rule  has  something  to  do  with  provisions 
directly  suspending  or  restraining  the  alienation  of  present  in- 
terests, an  idea  which,  as  has  been  said,  has  thrown  the  fun- 
damentals of  the  law  into  confusion.  To  see  how  great  that 
confusion  may  be  one  has  only  to  read  the  Maryland  decisions 
stated  §  245  c-245  k,  ante,  or  the  decisions  made  under  statutes 
based  on  restraining  "suspension  of  alienation." 


264  THE  RULE  AGAINST  PERPETUITIES. 


CHAPTER  VIII. 

INTERESTS  SUBJECT  TO  THE  RULE  AGAINST 
PERPETUITIES.^ 

§  279.  Easements,  profits  a  prendre,  and  other  rights  over 
the  lands  of  others  are  not  future  but  present  interests,  and 
the  Rule  against  Perpetuities  has  no  application  to  them.2 
This  statement  would  seem  superfluous,  were  it  not  for  the 
remark  of  Sir  George  Jessel,  M.  R.,3  that  exceptions  to  the 
rules  against  remoteness  had  "been  thoroughly  established 
in  many  cases  at  law  as  regards  easements."  4  There  is  no 
need  to  create  any  exception;  easements  are  present  interests, 
and  the  Rule  applies  to  future  interests  only.5  And  further, 
as  the  Rule  against  Perpetuities  affects  the  beginning  only 
of  future  interests,  and  does  not  concern  itself  with  conditions 
subsequent,  except  so  far  as  they  are  also  conditions  pre- 
cedent, a  provision  that  an  easement  or  other  jits  in  alieno 
solo  shall  terminate  on  a  certain  contingency  is  not  invali- 
dated by  the  remoteness  of  the  contingency.6  A  remote  con- 

1  The     question    whether     the      land  Cement  Manuf.,  [1910]  1  Ch. 
Rule  against    Perpetuities  is   good      12,  §§  330a-330  c,  post. 

against  the  Crown  is  stated  but  not  Easements,  etc.,  created  infuturo 

decided  in  Cooper  v.  Stuart,  14  Ap.  are  subject   to   the   Rule.     These 

Cas.  286,  293.     See  s.  c.  below,  will  be  considered  §§  314-316,  post. 

7  N.  S.  Wales  L.  R.  Eq.  1.  •  In  Switzer  v.  Rochford,  [1906] 

2  Lewis,  Perp.  599.  1  I.  R.  399,  a  legal  rent  charge  for 
1  In  London  &  S.  W.  R.  Co.  t>.  500  years  was  granted  on  leasehold 

Goinm,  20  Ch.  D.  562,  583.  land  with  a  proviso  that  it  might 

4  See      Marsden,      Perp.      20;  be  redeemed  by  payment  of  £300, 

Challis,  Real  Prop.   (3d  ed.)   186,  and  that  it  should   then  become 

187.  void.    It  was  held  that  the  proviso 

6  Cawthon    v.    Stearns    Culver  was     not     void     for     remoteness. 

Lumber  Co.,  60  Fla.  313;  see  South  Switzer   v.    Rochford    appears    to 

Eastern  R.  Co.  v.  Associated  Port-  have  been  doubted  by  the  Irish 


INTERESTS   SUBJECT  TO   THE   RULE.  265 

ditional  limitation  is  invalid,  not  because  the  old  estate  ends 
at  a  remote  period,  but  because  the  new  estate  begins  at  a 
remote  period.  The  ceasing  of  one  interest  in  possession  of 
a  corporeal  hereditament  is  the  beginning  of  another  interest 
in  possession,  —  it  is  a  transfer  of  possession;  but  the  termina- 
tion of  an  easement  is  not  the  beginning  of  another  ease- 
ment, —  the  easement  is  not  transferred;  it  is  extinguished 
altogether.1 

§  280.  Covenants  as  to  the  use  of  land  are  often  regarded  in 
equity,  according  to  the  familiar  doctrine  of  Tidk  v.  Moxhay? 
and  the  numerous  cases  following  it,  as  imposing  a  trust  or  bur- 
den on  the  land  for  the  benefit  of  other  land  belonging  to  the 
grantor  or  to  third  persons.  The  rights  thus  created  are  some- 
times called  equitable  easements;  they  are  present  interests, 
and  are  no  more  subject  to  the  Rule  against  Perpetuities  than 
are  common-law  easements.  "There  seems  some  difficulty  in 
understanding  the  objection  to  such  a  modified  enjoyment 
of  property  on  the  ground  of  its  supposed  tendency  to  a 
perpetuity."  3 

Court  of  Appeal  in  In  re  Tyrrell's  there  was  only  an  extinction  of  an 

Estate,  [1907]  1  I.  R.  292,  297,  303,  equitable    charge.     But  in  In  re 

but  it  seems  to  be  correct  (and  see  Donoughmore's    Estate,    [1911]     1 

§  209,  ante).    The  duty  to  give  up  I.  R.  211,  Switzer  v.  Rochford  was 

the   rent    charge   on   payment   of  not  followed  by  Wylie,  J. 

the    £300    did    not    call    for    any  x  Ardley    v.  Guardians    of    the 

transfer  of  a  property  right,  but  Poor,  39  L.  J.  Ch.  871  (fully  stated, 

only    for    the    extinction    of    the  §  316,  note,  post).    Cleveland,  etc. 

rent    charge.      See    §    329,    post.  R.   Co.   v.   Coburn,   91   Ind.   557. 

In  In  re  Tyrrell's   Estate   a  per-  Hall  v.  Turner,  110  N.  C.  292.   Wig- 

petual   equitable    charge   on   land  gins  Ferry  Co.  v.  Ohio  &  Miss.  R. 

was  redeemable  by  the  exercise  of  Co.,  94  111.  83.  Brownlee  v.  Douslin, 

an  option  to  pay  the  interest  on  a  N.  Z.  L.  R.  2  S.  C.  363;  N.  Z.  L.  R. 

certain  kind  of  bonds.   The  Court  3  C.  A.  57,  63;  ante,  §  17. 

held    that    the    equitable    charge  2  2  Phil.  774. 

"  could    not   be   thus   redeemed."  »  Per  Sir  J.  L.  Knight   Bruce, 

This  seems  wrong.    The  Court  rely  Ex  parte  Ralph,  De  Gex,  219,  225. 

on    London  &    S.    W.   R.   Co.   v.  Mackenzie  v.  Childers,  43  Ch.  D. 

Gomm,  but  there  the  option  called  265,  279.    Hall  v.  Turner,  110  N.  C. 

for  the  transfer  of  a  property  right,  292.      Lewis,    Perp.    612.      Sugd. 

while   in   In   re    TyrrelTs    Estate  Vend.  &  P.  (14th  ed.)  596.    2  Dav. 


266  THE   RULE  AGAINST  PERPETUITIES. 

§  281.  A  right  given  to  the  grantee  of  a  legal  or  equitable 
easement  to  enter  upon  the  servient  tenement  and  abate  any 
structure  put  up  to  the  injury  of  such  easement  does  not 
bring  the  easement  within  the  scope  of  the  Rule  against  Per- 
petuities. It  does  not  affect  the  title  to  the  land,  but  merely 
gives  the  grantee  the  right  to  do  for  himself  what  the  law 
would  do  for  him.1 

§  282.  It  is  immaterial  how  such  equitable  easement  is 
created.  According  to  the  modern  cases,  when  to  a  convey- 
ance of  land  a  condition  restraining  the  mode  of  its  use  is 
attached,  and  such  a  condition  is  for  the  benefit  of  the  land 
of  other  persons  (and  sometimes  when  it  is  for  the  benefit  of 
land  of  the  grantor  himself),  this  condition  is  not  regarded  as  a 
true  condition,  on  breach  of  which  the  grantor  or  his  heirs 
may  enter  and  be  in  of  their  old  estate,  but  is  simply  an  inapt 
way  of  declaring  a  trust.  To  determine  when  words  of  condi- 
tion constitute  a  true  condition  and  when  they  create  a  trust 
is  a  question  of  construction  outside  the  scope  of  this  treatise.2 

Prec.  Conv.   (4th  ed.)  511,  note,  being  and  twenty-one  years,  but 

Mareden,  Perp.  12,  13,  16.    Challis,  this  seems  to  have  been  unneces- 

Real  Prop.   (3d  ed.)   186,   187.  11  sary.    2  Dav.  Prec.  Conv.  (4th  ed.) 

Enc.   Laws  of  Eng.    (2d  ed.)   69.  511,  note.     Marsden,  Perp.  62. 
See  London  &  S.   W.   R.   Co.   v.  *  In  the    time  of    Lord   Coke, 

Gomm,  20  Ch.  D.  562,  583;  Heald  words  of  condition  restraining  the 

e>.  Ross,  47  Atl.  Rep.  (N.  J.)  575;  use  of  land,   although   manifestly 

Wakefield  v.  Van  Tassell,  202  111.  imposed  for  the  benefit  of  other 

41;  Stevens  v.  Annex  Realty  Co.,  land  in  the  neighborhood,  would 

173   Mo.   511;     Noel  v.  Hill,   158  undoubtedly  have  been  deemed  to 

Mo.  Ap.  426.  Cf .  Aepden  v.  Seddon,  create  a  condition  enforceable  by 

1  Ex.  D.  496.  entry.     In  England,  however,  for 

1  Tobey    v.   Moore,  130   Mass,  nearly,  if  not  quite,  two  centuries, 

448.    In  Ex  parte  Ralph,  De  Gex,  the  remedy  by  entry  for  breach  of 

219,  228,  229,  there  was  a  contract  condition  attached  to  a  conveyance 

to  convey  land  subject  to  equitable  in  fee  simple  has  been  practically 

easements,  with  proper  provisions  obsolete.     In  mortgages  all  reme- 

for  their  observance.     The  Court  dies  have  been  had  in  equity,  and 

ordered  a  clause,  giving  a  right  to  if  in  devises  clauses  in  the  form  of 

enter  and  abate  any  obstruction  to  a  condition  have  been  inserted  to 

the  easements,  to  be  inserted  in  the  secure  the  payment  of  legacies  to 

conveyance.      The    deed    actually  the  heir  or  third  persons,  the  right 

drawn  limited  this  right  to  lives  in  to  such  legacies  has  not  been  en- 


INTERESTS   SUBJECT  TO   THE   RULE. 


267 


It  is  enough  to  say  here  that  when  they  create  a  present  equi- 
table easement  by  way   of  trust,   such  equitable  easement 


forced  by  entry.  The  last  instance 
in  which  an  heir  is  reported  to  have 
entered  for  breach  of  a  condition  to 
pay  a  legacy  to  him  is  Grimston  v. 
Bruce,  1  Salk.  156  (1707),  (so  said 
by  counsel  in  Wright  v.  Wilkin,  2 
B.  &  S.  232,  262),  and  in  that  case 
he  was  enjoined  by  the  Court  of 
Chancery.  The  only  case  found  in 
either  the  eighteenth  or  the  nine- 
teenth century  in  England  where 
the  hen*  has  entered  for  breach  of  a 
condition  attached  to  a  fee  simple 
is  Doe  d.  Gill  v.  Pearson,  6  East, 
173  (1805),  and  there  no  trust 
could  be  raised,  and  the  decision 
has  been  doubted.  Attwater  v. 
Attwater,  18  Beav.  330.  Billing  v. 
Welch,  Ir.  R.  6  C.  L.  88.  See  Gray, 
Restraints  on  Alienation  (2d  ed.), 
§  31  et  seq.  The  practice  of  entry 
undoubtedly  fell  into  disuse,  be- 
cause when  the  condition  was  for 
the  payment  of  money,  which  it 
generally  was,  equity  would  re- 
strain a  forfeiture,  and  would  in 
many  cases  enforce  the  payment  as 
a  trust.  Yet  it  was  a  bold  state- 
ment for  Sugden  to  make  in  his 
treatise  on  Powers  (1st  ed.)  96 
(1808),  "That  what  by  the  old 
law  was  deemed  a  devise  upon  con- 
dition would  now,  perhaps,  in  al- 
most every  case,  be  construed  a 
devise  hi  fee  upon  trust,  and  by 
this  construction,  instead  of  the  hen- 
taking  advantage  of  the  condition 
broken,  the  cestui  que  trust  can  com- 
pel an  observance  of  the  trust  by  a 
suit  in  equity."  But  this  state- 
ment, which  is  repeated  by  the 
learned  author  in  all  the  subsequent 
editions,  —  see  8th  ed.  p.  106 


(1861),  —  though  bold,  was  pro- 
phetic. In  1860  the  Court  of 
Queen's  Bench,  and  on  appeal  the 
Exchequer  Chamber,  held,  in  the 
case  of  Wright  v.  Wilkin,  2  B.  &  S. 
232,  259,  that  upon  a  devise  on  con- 
dition that  the  devisee  should  pay 
certain  legacies,  the  heir  could  not 
enter  for  breach  of  condition,  but 
that  the  devisee  took  the  land  on 
trust;  and  this  view  was  adopted 
by  the  House  of  Lords  in  A.  G.  v. 
Wax  Chandlers'  Co.,  L.  R.  6  H.  L. 
1  (1873),  overruling  Lord  Romilly, 
M.  R.,  L.  R.  8  Eq.  452;  and  Lord 
Hatherley,  C.,  L.  R.  5  Ch.  503. 
See  also  A.  G.  v.  Southmolton,  14 
Beav.  357;  Merchant  Taylors'  Co. 
v.  A.  G.,  L.  R.  11  Eq.  35;  Re  Rich- 
ardson, 56  L.  J.  Ch.  784.  The  same 
doctrine  has  been  adopted  in  the  Su- 
preme Court  of  the  United  States, 
after  elaborate  argument,  in  Stan- 
ley v.  Colt,  5  Wall.  119.  So  in  Mas- 
sachusetts. Sohiert;.  Trinity  Church, 
109  Mass.  1,  19.  Episcopal  City 
Mission  v.  Appleton,  117  Mass.  326. 
Ayling  v.  Kramer,  133  Mass.  12. 
Skinner  v.  Shepard,  130  Mass.  180. 
Stone  v.  Houghton,  139  Mass. 
175.  Cassidy  v.  Mason,  171  Mass. 
507.  These  later  decisions  must 
be  taken  to  have  overruled  any- 
thing to  the  contrary  in  the  earlier 
Massachusetts  cases  of  A.  G.  v. 
Merrimack  Manuf.  Co.,  14  Gray, 
586,  and  Guild  v.  Richards,  16 
Gray,  309.  See  also  Jeffries  v. 
Jeffries,  117  Mass.  184.  In  Clapp 
v.  Wilder,  176  Mass.  332,  it  was 
held  by  four  judges  to  three  that 
a  certain  condition  was  not  im- 
posed for  the  benefit  of  land,  but 


268 


THE   RULE   AGAINST  PERPETUITIES. 


is  not  within  the  Rule  against  Perpetuities;  and  that  when 
they  constitute  a  true  condition,  the  effect  of  the  Rule  will  be 
considered  §  299  et  seq.,  post. 


I.  LEGAL  INTERESTS. 
A.     REAL  ESTATE. 

§  283.  (1)  Reversions  and  vested  remainders,  being  vested 
interests,  i.  e.  not  subject  to  a  condition  precedent,  are  not 
within  the  scope  of  the  Rule  against  Perpetuities.1 

§  284.  (2)  Contingent  Remainders.  —  Whether  contingent 
remainders  are  subject  to  the  Rule  against  Perpetuities  has 
been  much  discussed.  As  the  Rule  governs  all  shifting  and 
springing  uses  and  executory  devises,  and  all  contingent  limita- 


for  the  benefit  of  the  grantor  per- 
sonally. Whether  this  decision 
was  consistent  with  the  law  as  pre- 
viously held  in  Massachusetts  this 
is  not  the  place  to  consider.  In  ac- 
cord with  the  statement  in  this  note 
are  also  Neely  v.  Hoskins,  84  Me. 
386;  Ashuelot  Nat.  Bank  v.  Keene, 
74  N.  H.  148;  Fuller  v.  Arms,  45 
Vt.  400;  Brice  v.  All  Saints  Mem. 
Chapel,  31  R.  I.  183;  Avery  v. 
N.  Y.  Central  R.  R.  Co.,  106  N.  Y. 
142,  154,  155;  Post  v.  Weil,  115 
N.  Y.  361;  Cunningham  v.  Parker, 
146  N.  Y.  29;  Countryman  v.  Deck, 
13  Abb.  N.  C.  110;  Freer  v.  Glen 
Springs  Sanatorium,  131  N.  Y. 
Ap.  D.  352;  Mills  v.  Davison, 
54  N.  J.  Eq.  659;  Clark  v.  Martin, 
49  Pa.  289;  St.  Peter's  Church  v. 
Bragaw,  144  N.  C.  126;  Watrous 
v.  Allen,  57  Mich.  362;  Lake  Erie 
&  W.  R.  R.  Co.  v.  Priest,  131  Ind. 
413;  Wier  v.  Simmons,  55  Wis.  637; 
Carroll  County  Academy  v.  Gal- 
latin  Academy  Co.,  104  Ky.  621; 
Thornton  v.  Natchez,  129  Fed.  Rep. 
84.  And  in  Connecticut  it  is  said 


that  all  conditions  which  are  not 
for  the  benefit  of  some  individual 
or  the  public  are  void.  Mitchell  v. 
Leavitt,  30  Conn.  587.  And  see 
Barrie  v.  Smith,  47  Mich.  130.  But 
see  Adams  v.  Valentine,  33  Fed. 
Rep.  1.  The  decision  of  the  Mary- 
land cases,  Bennett  v.  Humane 
Impartial  Soc.,  91  Md.  10;  and 
Woman's  Foreign  Missionary  Soc. 
v.  Mitchell,  93  Md.  199,  was  af- 
fected by  the  doctrine,  peculiar 
to  that  State,  that  property  can- 
not be  given  upon  an  express  char- 
itable trust.  See  §  245  c,  ante.  Cf. 
May  v.  Boston,  158  Mass.  21,  31; 
Upington  v.  Corrigan,  151  N.  Y. 
143;  Blanchard  v.  Detroit,  etc. 
R.  R.  Co.,  31  Mich.  43;  Underhill  v. 
Saratoga  R.  R.  Co.,  20  Barb.  455; 
Aikin  v.  Albany,  etc.  R.  R.  Co., 
26  Barb.  289;  Douglas  v.  Hawes, 
Ritchie,  Eq.  Dec.  146,  152;  11 
Law  Rep.  Annotated,  N.  S.  509, 
note,  et  seq. 

1  See  §§  205-210,  ante,  and  es- 
pecially the  qualification  in  §  205  a, 
et  seq. 


INTERESTS   SUBJECT   TO    THE    RULE.  269 

tions  of  personal  property,  whether  in  the  form  of  remainders 
or  not,  it  seems  very  desirable  that  contingent  remainders 
should  be  subjected  to  the  Rule  also.  Some  reasons  have, 
however,  been  suggested  for  exempting  legal  contingent 
remainders  from  the  operation  of  the  Rule  against  Perpetuities. 

§  285.  I.  That  a  contingent  remainder  can  be  destroyed  by 
the  tenant  of  the  particular  estate,  inasmuch  as  a  contingent 
remainder  must  be  supported  by  an  estate  tail  or  an  estate  for 
life,  and  a  tenant  in  tail  can  bar  all  remainders  by  a  fine  or 
recovery,  while  a  tenant  for  life  by  a  feoffment,  fine,  or  sur- 
render can  destroy  all  contingent  remainders  dependent  upon 
his  estate.  This  view  is  advocated  in  two  articles  in  the  Jurist 
for  1844.1  It  is  true  that  the  indestructibility  of  executory 
devises  led  to  the  establishment  of  the  Rule  against  Per- 
petuities, while  the  ease  with  which  contingent  remainders 
might  be  destroyed  prevented  or  postponed  the  starting  of  any 
question  as  to  their  remoteness.2  But  while  it  is  true  that  no 
remainder  after  an  estate  tail  can  be  too  remote,  since  it  can  be 
destroyed  by  docking  the  entail,  the  case  is  different  with  a 
contingent  remainder  after  an  estate  for  life.  The  docking  of 
an  estate  tail  is  a  lawful  act,  which  no  condition  can  restrain, 
while  on  the  other  hand  a  tortious  conveyance  by  a  tenant  for 
life  exposes  him  to  a  forfeiture  of  his  estate;  and  if  a  trustee 
to  support  contingent  remainders  joins  in  a  conveyance  to 
destroy  them,  he  commits  a  breach  of  trust.3  If  a  remainder 
cannot  be  too  remote,  the  whole  doctrine  of  cy  pres 4  falls  to 
the  ground;  on  a  remainder  to  an  unborn  person  for  life,  with 
remainder  to  his  issue,  there  is  no  occasion  to  give  such  a  person 
an  estate  tail,  if  the  remainder  to  his  issue  is  good. 

§  286.  But  it  is  needless  to  discuss  this  theory,  the  un- 
soundness  of  which  Mr.  Lewis  has  exposed,5  for  both  in  Eng- 
land and  very  generally  in  America  contingent  remainders  have 

1  8  Jur.  pt.  2,  20,  283.  *  See  Chap.  XIX.,  post. 

2  §  192,  ante.  6  Lewis,  Perp.   Suppl.   130-136, 
»  Mansell  v.  Mansell,  2  P.  Wms.      140-142. 

678,  680. 


270  THE   BULB   AGAINST  PERPETUITIES. 

by  statute  ceased  to  be  destructible.1  If  they  were  exempt  from 
the  operation  of  the  Rule  against  Perpetuities,  because  they 
could  be  destroyed,  now  that  they  have  become  indestructible 
they  must  fall  within  it. 

§  287.  II.  That  the  old  notion  that  you  cannot  have  a  pos- 
sibility on  a  possibility  has  survived  in  the  form  of  a  prohibi- 
tion of  life  estates  to  successive  generations,  and  that  this, 
and  not  the  Rule  against  Perpetuities,  governs  the  creation 
of  remainders.  The  suggestion  had  been  made  before,2  but  it 
was  brought  into  prominence  by  Sir  Edward  Sugden.  In  Cole 
v.  Sewell,3  as  Lord  Chancellor  of  Ireland,  he  held  that  a  con- 
tingent remainder  dependent  on  an  estate  tail  was  barrable. 
There  can  be  no  doubt  of  the  correctness  of  the  decision,  which 
was  affirmed  in  the  House  of  Lords.  But  the  Lord  Chancellor 
of  Ireland  not  only  held  that  contingent  remainders  after  an  es- 
tate tail  were  good,  but  he  said  that  in  all  remainders  remote- 
ness was  out  of  the  question.  His  language  is  far  from  clear. 
It  is  given  in  the  note.4  Mr.  Lewis  having  commented  on  Cole 

1  See  1  111.  Law  Rev.  377,  note  preceding  limitation  determines,  it 

17;  4  111.  Law  Rev.  355.  can  never  take  effect  at  all.  There 

1  See  §§  195-199,  ante.  was  a  great  difficulty  in  the  old 

1  4  Dr.  &  W.  1;  2  Conn.  &  L.  law,  because  the  Rule  as  to  Per- 

344.  See  5  Ir.  L.  190,  595.  petuity,  which  is  a  comparatively 

4  "As  to  the  question  of  re-  modern  rule  (I  mean  of  recent  in- 

moteness,  at  this  time  of  day,  I  troduction,  when  speaking  of  the 

was  very  much  surprised  to  hear  laws  of  this  country),  was  not 

it  pressed  upon  the  Court,  because  known,  so  that,  while  contingent 

itiis  now  perfectly  settled,  that  remainders  were  the  only  species 

where  a  limitation  is  to  take  effect  of  executory  estate  then  known, 

as  a  remainder,  remoteness  is  out  and  uses,  and  springing  and  shift- 

of  the  question:  for  the  given  limita-  ing  limitations  were  not  invented, 

tion  is  either  a  vested  remainder,  the  law  did  speak  of  remoteness 

and  then  it  matters  not  whether  it  and  mere  possibilities  as  an  objec- 

ever  vest  in  possession,  because  the  tion  to  a  remainder,  and  endeavored 

previous  estate  may  subsist  for  to  avoid  remote  possibilities;  but 

centuries,  or  for  all  time;  or  it  is  a  since  the  establishment  of  the  Rule 

contingent  remainder,  and  then,  by  as  to  Perpetuities,  this  has  long 

the  rule  of  law,  unless  the  event,  ceased,  and  no  question  now  ever 

upon  which  the  contingency  de-  arises  with  reference  to  remote- 

pends,  happen,  so  that  the  re-  ness;  for  if  a  limitation  is  to  take 

mainder  may  vest  eo  instanti  the  effect  as  a  springing,  shifting,  or 


INTERESTS   SUBJECT  TO   THE   RULE. 


271 


v.  Sewell,1  Lord  St.  Leonards,  in  Monypenny  v.  Dering* 
remarked:  "In  Cole  v.  Sewell,  I  said  that  the  rule  against  a 
limitation  to  an  unborn  son  of  an  unborn  son  was  unaffected 
by  what  I  there  laid  down;"  and  again:  "The  rule  of  law 
forbids  the  raising  of  successive  estates  by  purchase  to  unborn 
children,  that  is  to  an  unborn  child  of  an  unborn  child.  With 
this  rule  I  have  never  meant  to  interfere,  for  it  is  too  well 
settled  to  be  broken  in  upon."  And  in  his  Law  of  Property 
he  said  that  in  Cole  v.  Sewell  "the  rule  was  admitted  to  be  a 
continuing  one,  which  forbids  the  creation  of  successive  life 
estates  to  successive  unborn  classes  of  issue.  So  far  the  old 


secondary  use,  not  depending  on 
an  estate  tail,  and  if  it  is  so  limited, 
that  it  may  go  beyond  a  life  or 
lives  in  being,  and  twenty-one 
years,  and  a  few  months,  equal  to 
gestation,  then  it  is  absolutely 
void;  but  if,  on  the  other  hand,  it 
is  a  remainder,  it  must  take  effect, 
if  at  all,  upon  the  determination 
of  the  preceding  estate.  In  the 
latter  case,  the  event  may  or  may 
not  happen,  before,  or  at,  the  in- 
stant the  preceding  estate  is  deter- 
mined, and  the  limitation  will  fail, 
or  not,  according  to  that  event.  It 
may  thus  be  prevented  from  taking 
effect,  but  it  can  never  lead  to  re- 
moteness. That  objection,  there- 
fore, cannot  be  sustained  against 
the  validity  of  a  contingent  re- 
mainder. .  .  .  The  first  instance 
of  Mr.  Fearne  is  taken  from  Coke, 
Littleton,  378  a,  and  the  passage 
shows  there  was  then  a  difficulty 
about  remote  possibilities  which 
•does  not  exist  at  this  moment. 
Lord  Coke,  speaking  of  this,  says: 
'So  it  is  if  a  man  make  a  lease  for 
life  to  A.,  B.,  and  C.,  and  if  B.  sur- 
vive C.,  then  the  remainder  to  B. 
and  his  heirs:  here  is  another  ex- 
ception out  of  the  said  rule,  for 


albeit  the  person  be  certain,  yet 
inasmuch  as  it  depends  upon  the 
dying  of  B.  before  C.,  the  remainder 
cannot  vest  in  C.  presently:  and 
the  reason  of  both  these  cases  in 
effect  is,  because  the  remainder  is 
to  commence  upon  limitation  of 
time,  viz.  upon  the  possibilitie  of 
the  death  of  one  man  before  an- 
other, which  is  a  common  possi- 
bilitie.' The  concluding  words 
show  that  in  those  early  times 
they  were  looking  to  the  period 
when  the  contingency  might  arise. 
The  effect,  however,  of  the  modern 
Rule  against  Perpetuities  has  been 
to  render  this  doctrine  obsolete, 
although  it  has  rendered  void  suc- 
cessive life  estates  to  successive  un- 
born classes  of  issue.  In  Nicholls 
v.  Sheffield,  2  Bro.  C.  C.  215,  the 
Court  held  that  a  proviso  for  shift- 
ing an  estate  after  an  estate  tail 
was  valid;  and  Lord  Kenyon,  who 
was  then  at  the  Rolls,  would  not 
listen  to  an  argument  founded  on 
remoteness,  because  the  limitation 
over  might  at  any  time  be  barred 
by  the  previous  tenant  in  tail." 
4  Dr.  &  W.  28-32. 

1  Perp.  Suppl.  103-111. 

*  De  G.  M.  &  G.  145,  168,  171. 


272  THE   RULE   AGAINST  PERPETUITIES. 

law  was  admitted  to  operate.  .  .  .  The  limitation  was  not 
within  the  old  rule  forbidding  the  providing  for  a  possibility 
upon  a  possibility."  l 

§  288.  The  notion  that  there  could  not  be  "a  possibility 
upon  a  possibility"  was  no  part  of  the  common  law.  It  was 
a  conceit  introduced  by  Chief  Justice  Popham  in  1598,2  due, 
as  Mr.  Williams  himself  says,  to  "the  mischievous  scholastic 
logic  which  was  then  rife  in  our  courts  of  law;"  3  and  it  was 
a  passing  conceit.  Within  twenty  years  Lord  Coke,  C.  J., 
said:  "If  Popham's  opinion  should  be  law,  it  would  shake 
the  common  assurances  of  the  land;"4  and  in  The  Duke  of 
Norfolk's  Case,5  in  1681,  Lord  Nottingham,  C.,  said:  "That 
there  may  be  a  possibility  upon  a  possibility,  and  that  there 
may  be  a  contingency  upon  a  contingency,  is  neither  unnatu- 
ral nor  absurd  in  itself;  but  the  contrary  rule  given  as  a  rea- 
son by  my  Lord  Popham  in  the  Rector  of  Chedington's  Case 
looks  like  a  reason  of  art;  but  in  truth  has  no  kind  of  reason 
in  it,  and  I  have  known  that  rule  often  denied  in  West- 
minster Hall." 6  Not  until  1765,  in  the  case  of  Chapman 

1  P.  120.  See  Sugden,  Real  on  Real  Property,  it  must  be  con- 
Prop.  Statutes  (2ded.)  274,note  (a).  ceded  that  Lord  St.  Leonards 

Mr.  Justice  Kay,  in  In  re  Frost,  recognizes  the  continued  existence 

43    Ch.    D.    246,    253,    says   that  of  the  doctrine  of  a  possibility  upon 

"Lord    St.    Leonards    in    Cole    v.  a    possibility.     Cf.    Gilbert,    Uses 

Sewell   used   language   which   has  (Sugd.   ed.)    119,   note   (2);  Sugd. 

been  read  as  meaning  that  the  doc-  Pow.  (8th  ed.)  677;   1  Jarm.  Wills 

trine   of   remoteness   never   could  (6th  ed.)  354,  note  (d). 
apply  to  a  contingent  remainder,"  *  Rector  of  Chedington's  Case, 

but  that  "  the  language  refers  sim-  1   Co.   153  a,   156  b,   §§   125-133, 

ply  to  the  case  of  an  estate  for  life  or  ante,  where  the  matter  is  more  fully 

an  estate  tail  limited  to  a  person  in  treated. 

esse,  when  the  limitation  takes  ef-  *  Wms.  Real    Prop.    (22d    ed.) 

feet."    "But  none  of  that  language  370. 

contemplates  the  case  of  there  being  *  Blamford  v.  Blamford,  3  Bulst. 

interposed  a  possible  estate  for  life  98;  1  Roll.  R.  318,  321. 
to  a  person  not  in  existence,  and  *  3  Ch.  Gas.  1,  29. 

a   contingent    remainder   over   on  8  §  133,  note,  ante,     Wms.  Real 

the  death  of  that  person."     This  Prop.   (22d  ed.)    370.     "I  do  not 

is  a  just  comment  on  Cole  v.  Sewell,  think  that  much  reliance  can  be 

but  in  the  extract  from  his  treatise  placed  on  the  existence  of  an  inde- 


INTERESTS   SUBJECT  TO   THE  BULB.  273 

v.  Broum,1  is  any  suggestion  to  be  found  that  such  a  theory  is 
at  the  basis  of  the  prohibition  of  a  gift  to  the  issue  of  an  unborn 
child;  and  except  as  furnishing  a  ground  for  such  prohibition, 
it  is  now  universally  admitted  to  be  entirely  exploded.2 

§  289.  So  much  for  the  alleged  ground  of  the  supposed 
rule  that,  apart  from  the  question  of  remoteness,  you  cannot 
limit  successive  life  estates  in  remainder.  But  no  trace  of  the 
rule  itself  is  found  until  Marlborough  v.  Godolphin 3  (1759),  and 
then  it  is  not  based  on  the  "possibility  upon  a  possibility" 
theory;  and  Manning  v.  Andrews*  shows  that  before  the 
establishment  of  the  Rule  against  Perpetuities  such  limita- 
tions were  deemed  unobjectionable.5 

§  290.  In  short,  the  substitute  offered  to  take  the  place 
of  the  Rule  against  Perpetuities  as  to  remainders  is  a  non- 
existent rule  based  on  an  exploded  theory. 

§  291.  Let  us  consider,  however,  this  supposed  rule  a  little 
more  closely.  It  is  sometimes  said  to  be  that  you  cannot  give 
a  remainder  to  the  issue  of  a  person  unborn.6  But  on  a  de- 
vise to  A.,  a  bachelor,  for  life,  remainder  to  A.'s  grandchildren 
in  fee,  the  remainder  is  to  the  issue  of  unborn  persons,  yet 
it  is  unquestionably  good,7  and  the  creation  of  such  a  remain- 
der by  the  exercise  of  a  power  is  of  constant  occurrence  in 
practice.8 

pendent  rule  of  law  forbidding  a  4  1    Leon.   256    (1576),   stated 

possibility  on  a  possibility."     Per  §§  132,  132  a,  ante. 

Farwell,  J.,  in  In  re  Ashforth,  [1905]  •  §§  191-199,  ante. 

1  Ch.  535,  543.    And  Mr.  Charles  •  Leake,  Land  Law,  334. 

Sweet,  while  contending  that  the  7  See  Brown  v.  Brown,  86  Term, 

rule  against  contingent  remainders  277,  291-297. 

being  limited  to  successive  genera-  8  See  Routledge  v.  Dorril,  2  Ves. 

tions  still  continues,  condemns,  in  Jr.  357,  366;  Robert  v.  West,   15 

the  strongest  terms,  the  notion  of  Ga.  122,  142.    These  were  cases  of 

double  possibilities.     Challis,  Real  personalty,  it  is  true,  but  it  has 

Prop.   (3d  ed.)   118;  12  Columbia  never  been  doubted  that  the  same 

Law  Rev.  200,  216,  219.  rule  holds  in  legal  remainders.    See 

1  3  Burr.  1626;  §  197,  ante.  Hockley  v.  Mawbey,  1  Ves.  Jr.  143, 

1  §  133,  note,  ante.     But  now  150;   Sugd.   Pow.    (8th   ed.)    397, 

see  §  298  h  h,  post.  677. 
»  1  Eden,  404;  §§  195,  196,  ante. 


274  THE   RULE   AGAINST  PERPETUITIES. 

§  292.  The  form  in  which  the  alleged  rule  is  stated  by  Mr. 
Joshua  Williams,  its  chief  defender,  is:  "An  estate  cannot 
be  given  to  an  unborn  person  for  life,  followed  by  any  estate 
to  any  child  of  such  unborn  person."  1  But  suppose  an  estate 
is  given  to  A.,  a  bachelor,  for  life,  remainder  to  A.'s  eldest 
son  for  life,  remainder  to  the  eldest  son  of  the  eldest  son  of 
B.,  another  bachelor,  in  fee.  This  does  not  come  within  Mr. 
Williams's  rule.  The  eldest  son  of  the  eldest  son  of  B.  is  the 
child  of  an  unborn  person,  but  the  remainder  to  him  does  not 
follow  an  estate  to  that  unborn  person,  but  an  estate  to  an- 
other unborn  person;  yet  undoubtedly  such  remainder  would 
be  bad. 

§293.  Suppose,  therefore,  the  rule  is  put  in  this  form:  "A 
remainder  to  the  issue  of  an  unborn  person  is  bad  if  preceded 
by  a  life  estate  to  an  unborn  person."  But  if  an  estate  is 
given  to  A.,  a  bachelor,  for  Me,  remainder  to  his  eldest  son 
for  life,  remainder  to  such  of  the  other  children  of  A.  as  sur- 
vive his  eldest  son,  the  remainder  to  the  younger  children  of 
A.  is  not  to  the  issue  of  an  unborn  person  but  of  a  living  per- 
son; but  as  it  will  not  vest  till  the  death  of  an  unborn  person, 
can  any  one  doubt  that  it  would  be  held  bad? 

§  294.  Suppose  the  rule  takes  this  shape.  A  contingent 
remainder  is  not  good  unless  it  must  vest  within  lives  in 
being  at  the  time  of  its  creation;  or,  as  Wood,  V.  C.,  puts  it 
in  Cattlin  v.  Brown,2  "a  contingent  remainder  cannot  be 
limited  as  depending  on  the  termination  of  a  particular 
estate,  whose  determination  will  not  necessarily  take  place 
within  the  period  allowed  by  law."  3  Now  this  is  the  Rule 

1  See   Challis,    Real   Prop.    (3d  bachelor,  for  life,  remainder  to  his 

ed.)   115;  Wms.  Real    Prop.   (22d  eldest  son  for  life,  remainder  to  A.'s 

ed.)  370,  371.  other  children   in  fee.     Here  the 

*  11  Hare,  372,  374.  remainder  to  A.'s  younger  children 

1  This   is   not   quite   exact.     If  is  contingent  at  its  creation,  but  it 

the  contingent  event  must  happen  must  become  vested,  if  ever,  during 

within  the  required  limits  the  re-  the  life  of  A.,  and  is,  therefore,  un- 

mainder  is  good,  although  it  follows  questionably  good.    But  see  §  298 

an  estate  which  may  not  terminate  h  h,  post. 

within  those  limits;  e.  g.  to  A.,  a 


INTERESTS   SUBJECT  TO   THE   RULE.  275 

against  Perpetuities,  less  the  allowance  of  twenty-one  years. 
But  the  allowance  of  the  period  of  twenty-one  years  beyond 
lives  in  being  formed  no  part  of  the  original  Rule.  As  has 
been  shown,1  it  was  established  by  erroneous  reasoning,  though 
it  has  now  become  a  settled  part  of  the  Rule.  There  is  no 
ground  why  it  should  not  be  added  to  the  Rule  in  the  case 
of  contingent  remainders  if  it  is  to  be  added  in  the  case  of 
other  future  limitations,  and  there  is  decided  inconvenience 
in  introducing  arbitrary  distinctions.  If  the  period  of  twenty- 
one  years  has  been  adopted  in  the  latter  class  it  should  be  in 
the  former.  "The  rule  is  stated  in  the  able  argument  of  Mr. 
Preston  in  Mogg  v.  Mogg.2  He  says:  'A  gift  to  an  unborn 
child  for  life  is  good,  if  it  stops  there;  but  if  a  remainder  is 
added  to  his  children  or  issue  as  purchasers,  it  is  not  good, 
unless  there  be  a  limitation  of  the  time  within  which  it  is  to 
take  effect.' 3  That  is,  I  think,  a  perfectly  accurate  state- 
ment of  the  law  which  I  am  to  apply  to  this  case."  4 

§  294  a.  The  rule  then  must  take  this  form:  a  contingent 
remainder  is  good,  if  it  must  vest  within  twenty-one  years 
after  lives  in  being,  but  to  this  there  is  an  exception,  viz. 
such  remainder  is  bad  if  it  is  preceded  by  a  contingent  remainder 
to  such  remainder-man's  parent  now  unborn.5  What  is  the  rea- 
son for  this  exception?  It  must  be,  either  because  it  is  required 
by  the  general  policy  of  the  law  as  to  remoteness,  or  because 
it  is  required  by  a  doctrine  of  the  Common  Law  settled  before 
the  policy  of  the  law  as  to  remoteness  had  been  established.  It 
is  not  required  for  the  former  reason,  for  the  general  policy  of 
the  law  as  to  remoteness  calls  for  no  such  exception.  It  is 
not  required  by  the  second  reason,  because  there  is  no  evidence 
that  such  doctrine  had  been  adopted  into  the  Common  Law, 
and  it  is  no  answer  to  say  that  if  the  policy  of  the  law  as  to 
remoteness  had  not  been  established,  the  courts  would,  not 
improbably,  have  done  something  to  meet  this  particular  case. 

1  §§  186-188,  ante.  «  Per  Wood,  V.   C.,  Cattlin  v. 

1  1  Mer.  654.  Brown,  11  Hare,  372,  375. 

1  1  Mer.  664.  •  But  now  see  §  298  h  h,  post. 


276  THE  RULE   AGAINST  PERPETUITIES. 

§  295.  Mr.  Williams's  chief  argument *  for  the  doc- 
trine that  the  Rule  against  Perpetuities  does  not  apply  to 
remainders  was  that  no  conveyancer  had  ever  drawn  a  settle- 
ment giving  remainders  to  those  children  of  unborn  children 
who  should  be  born  within  twenty-one  years  after  the  settlor's 
death;  but  the  answer  is  that  no  such  settlements  had  in  fact 
been  drawn  of  personalty,  and  yet  such  limitations  Mr.  Williams 
himself  would  have  agreed  were  good;  and  they  have  now  been 
decided  to  be  good.  In  re  Bowles? 

§  296.  The  notion  which  has  led  to  the  belief  that  con- 
tingent remainders  are  exempt  from  the  operation  of  the  Rule 
against  Perpetuities  seems  to  be  that  contingent  remainders 
are  common-law  interests,  and  that  the  Rule  was  called  into 
existence  by  the  enactment  of  the  Statutes  of  Uses  and  Wills, 
and  for  the  purpose  of  restraining  the  creation  of  the  interests 
first  allowed  by  those  Statutes,  viz.  shifting  and  springing  uses 
and  executory  devises,  and  that  it  is  confined  to  those  inter- 
ests. This  is  historically  incorrect.  It  is  true  that  contingent 
remainders  came  into  the  law  without  the  aid  of  any  statute, 
but  they  were  not  allowed  till  the  fifteenth  century,  and  they 
did  not  come  into  actual  use  in  settlements  until  after  the 
passage  of  the  Statutes  of  Uses  and  Wills; 3  and  even  when 
they  were  introduced  into  practice,  as  they  were  easily  de- 
structible, any  inconvenience  on  the  score  of  remoteness  was 
little  felt.  Instead  of  the  Rule  against  Perpetuities  coming 
in  upon  the  enactment  of  the  Statutes  of  Uses  and  Wills, 
it  was  not  distinctly  announced  from  the  Bench  until  The 
Duke  of  Norfolk's  Case,4  in  1681,  one  hundred  and  forty  odd 
years  after  the  passage  of  those  Statutes.  And  how  novel  a 
doctrine  it  then  was  appears  from  the  fact  that  the  decree  of 
Lord  Chancellor  Nottingham,  though  finally  approved  by  the 

1  Real  Prop.  (18th  ed.)  App.  E.  personalty.     Fonseca  v.  Jones,  21 

1  [1902]  2  Ch.  650.    So  the  rule  Manitoba,  168,  184. 

against  "double  possibilities"  does  *  §  134,  ante. 

not  apply  where  there  is  a  duty  on          *  3  Ch.  Gas.  1;  §  169,  ante. 

a   trustee   to   convert   realty   into 


INTERESTS   SUBJECT  TO   THE   RULE.  277 

House  of  Lords,  was  opposed  to  the  opinions  of  the  heads  of 
the  three  superior  courts  of  common  law,  and  was  reversed 
by  his  successor,  Lord  Keeper  North.  And  so  far  is  it  from 
being  true  that  the  Rule  against  Perpetuities  was  introduced 
only  against  interests  created  by  the  Statutes  of  Uses  and 
Wills,  that,  in  fact,  it  was  to  a  common-law  limitation  that 
the  Rule  owed  its  development.  Executory  devises  of  chattels 
real  were  common-law  interests.  There  could  be  no  use  of  a 
chattel,  and  chattels  were  always  devisable  at  common  law. 
But  it  was  in  the  long  line  of  cases  touching  these  common-law 
interests,  culminating  in  The  Duke  of  Norfolk's  Case  itself,  that 
the  Rule  against  Perpetuities  grew  and  took  its  shape.1 

§  296  a.  Mr.  Sweet  in  a  note  to  Challis,  Real  Prop.  (3d  ed.) 
210,  while  not  denying  that  executory  devises  of  chattels  were 
allowed  at  the  time  when  the  Rule  against  Perpetuities  was 
established,  and  that  it  was  in  the  consideration  of  them  that 
the  Rule  was  formulated,  says  that  they  were  not  allowed 
until  Manning's  Case,2  and  that  therefore  they  were  not 
common-law  interests.  If  no  doctrine  is  to  be  considered  as 
part  of  the  common  law  unless  it  was  in  force  at  the  time 
of  the  Heptarchy,  or  the  Norman  Conquest,  or  some  other 
selected  date  in  the  Middle  Ages,  then  few  doctrines  are  parts 
of  the  common  law;  for  instance,  contingent  remainders 
themselves  are  not  common-law  interests.  It  is  submitted 
that  it  is  both  usual  and  accurate  to  describe  a  doctrine  which 
has  become  settled  in  the  law  without  the  aid  of  a  statute  as 
a  common-law  doctrine.  The  real  point  in  issue  is  whether, 
before  the  Rule  against  Perpetuities  was  developed,  such  a 
doctrine  had  become  established  without  the  aid  of  statutes. 
Mr.  Sweet,  surely,  cannot  be  suspected  of  holding  to  the  vul- 
gar error  that  judges  cannot  make  law.3 

§  297.  If  it  were  true  that  contingent  remainders  are  not 
subject  to  the  Rule  against  Perpetuities,  because  they  are 
common-law  interests,  then  bequests  of  chattels,  real  or 

1  §§  148-158,  160-169,  ante.  *  See  Gray,  Nature  and  Sources 

1  8  Co.  94  6.  of  the  Law,  §§  465-512. 


278  THE   BULB   AGAINST  PERPETUITIES. 

personal,  would  not  be  subject  to  the  Rule,  for  they  owe 
nothing  to  any  statute;  and  (to  say  nothing  of  rights  of  entry 
for  breach  of  condition  and  possibilities  of  reverter)  easements, 
rents,  and  terms  for  years  could  be  created  to  begin  on  the 
most  distant  contingencies.1  So,  again,  if  it  was  necessary  in 
order  that  an  interest  should  be  subjected  to  the  Rule  against 
Perpetuities,  that  it  should  owe  its  existence  to  the  Statute  of 
Uses  or  of  Wills,  all  equitable  interests  of  every  description 
would  be  free  from  any  restraint  of  the  Rule,  for  equitable 
interests  existed  long  before  those  statutes.  Yet  no  one  ques- 
tions that  to-day  they  are  within  the  scope  of  the  Rule.2 

§  298.  The  Rule  against  Perpetuities  is,  comparatively 
speaking,  a  modern  rule.  No  need  of  restraining  future  in- 
terests was  felt  in  the  early  times.  The  need  was  first  felt 
in  connection  with  executory  devises  of  chattels,  which  were 
common-law  interests.  As  to  springing  and  shifting  uses  and 
executory  devises  of  freeholds,  the  courts  hesitated  at  first 
whether  they  should  be  held  indestructible;  finally  they  were 
held  indestructible,  and  a  need  then  arose  for  the  application 
of  the  Rule  against  Perpetuities  to  these  statutory  interests 
also.  Contingent  remainders  long  remained  destructible,  and 
no  practical  necessity  therefore  was  felt  of  considering  the 
Rule  in  connection  with  them.  The  Rule  was  created  and 
was  gradually  shaped  by  the  courts  to  restrain  future  interests 
within  twenty-one  years  after  a  life  in  being.  When  formed, 
it  was  applied  to  common-law  and  statutory  interests,  to  ex- 
ecutory devises  of  leaseholds  and  of  freeholds  alike,  it  was 
created  to  effect  a  general  end  of  public  policy,  and  there  is 
no  reason  in  history  or  policy  why  all  future  interests  should 
not  fall  within  it.  Such  is  the  spirit,  if  not  the  actual  deci- 
sion, in  London  &  S.  W.  R.  Co.  v.  Gomm?  The  fautors  of  the 

1  See  §§  300-302,  312,  315,  316,  cate  of  the  view  that  remainders 

319,  321,  post.  are  subject  to  the  Rule  against  Per- 

1  §  323,  post.  petuities.    Lewis,  Perp.  c.  16,  and 

1  20  Ch.  D.  562.    See  Chap.  V.,  especially  Suppl.  97-153.     See  to 

ante.    Mr.  Lewis  is  the  ablest  advo-  the  same  effect  1  Jarm.  Wills  (4th 


INTERESTS   SUBJECT  TO   THE  KULE.  279 

view  that  the  Rule  against  Perpetuities  should  not  apply  to 
common-law  interests  treat  the  Rule  as  if  it  was  a  statute 
directing  only  how  springing  and  shifting  uses  and  executory 
devises  should  be  dealt  with.  They  admit  that  the  judges  have 
applied  the  Rule  to  common-law  interests,  but  they  think  the 
judges  have  been  wrong  in  so  doing.1  But  the  Rule  is  not  a 
statute,  it  is  judge-made  law,  and  there  seems  no  reason  why, 
as  cases  arise,  the  judges  should  not  define  the  scope  of  the 
law  that  they  have  made.  The  phenomenon  is  common 
enough,  as,  for  instance,  in  mercantile  law. 

§  298  a.  Since  the  first  edition  of  this  book  the  case  of 
Whitby  v.  Mitchell2  has  been  decided.  Kay,  J.,  there  held 
that  the  rule  that  successive  life-estates  could  not  be  limited 
is  "not  only  an  application  of  the  law  against  perpetuities;  it 
is  something  more  than  that."  "For  that  proposition  I  do  not 
want  any  higher  authority  than  that  of  the  late  Mr.  Joshua 
Williams.  .  .  .  He  says  .  .  .  that  it  is  an  absolute  rule  inde- 
pendent of  the  rule  against  perpetuities.  With  that  I  entirely 
agree."  The  learned  judge  made  no  examination  of  the  au- 
thorities. In  this  case  legal  remainders  to  unborn  children  of 
unborn  children  after  life  estates  to  their  parents  were  declared 
to  be  bad,  although  they  were  so  limited  as  not  to  infringe  the 
Rule  against  Perpetuities.  This  decision  was  affirmed  by  the 
Court  of  Appeal.3  Cotton,  L.  J.,  said:  "You  cannot  have  a 
limitation  for  the  life  of  an  unborn  person,  with  a  limitation 
after  his  death  to  his  unborn  children  to  take  as  purchasers. 

ed.)   255-258,  260-263;   (5th  ed.)  (3d  ed.)  115,  187  et  seq.,  197  et  seq. 

218-221,   223-226;   2  Jarm.   Wills  See  generally  Sugd.  Pow.  (8th  ed.) 

(4th  ed.)  845;  60  L.  T.  247;  69  L.  T.  393,  394;  Fearne,  C.  R.  501;  3  Dav. 

360;    Theob.  Wills   (2d  ed.)   424-  Free.  Conv.  (3d  ed.)  270,  336-338; 

429;  (see  5th  ed.  520);  Tud.  L.  C.  Third  Rep.  Real  Prop.  Comm.  29- 

in  Real  Prop.  (3d  ed.)  470-475;  1  31;  Marsden,  Perp.  c.  8;  2  Vaizey, 

Hayes,  Conv.   (5th  ed.)  494,  495;  Settlem.  1154. 
Wood  v.   Griffin,   46   N.   H.   230,  l  See     Mr.    Challis     and    Mr. 

235.      Contra,    Wms.    Real    Prop.  Sweet,  in  Challis,  Real  Prop.  (3d 

(13th  ed.)  274-277,  (22d  ed.)  369-  ed.)  passim. 

372,  417-424;  8  Jur.  pt.  2,  20,  283;  *  42  Ch.  D.  494;  44  Ch.  D.  85. 

69  L.  T.  336;  Challis,  Real  Prop.          »  44  Ch.  D.  85. 


280  THE   RULE   AGAINST  PERPETUITIES. 

That  is  the  same  thing  as  what  has  been  called  'a  possibility 
upon  a  possibility.'     But  it  is  said  that,  although  there  is 
such  a  rule  in  existence,  that  is  superseded  by  the  more  modern 
rule  against  perpetuities.     In  my  opinion  the  old  rule  with 
regard  to  a  possibility  on  a  possibility  has  not  been  done  away 
with  by  this  modern  rule."    Lindley,  L.  J.,  said:    "I  entertain 
no   doubt    myself   that   Mr.   Joshua  Williams'   observations 
on  this  subject  are  correct  from  beginning  to  end,  and  I  do 
not  know  that  I  could  express  my  views  better  than  he  did.    I 
do  not  know,  any  more  than  he  seems  to  have  done,  the  exact 
meaning  of  the  old  rule  as  to  a  possibility  upon  a  possibility; 
and  if  any  one  turns  to  the  passage  in  Coke  upon  Littleton 
where  it  is  discussed,  I  hope  he  will  understand  it  better  than 
I  do.    I  confess  I  do  not  understand  it  now  and  never  did. 
But,  at  all  events,  it  gave  rise  to  the  rule  which  everybody 
can  understand  .  .  .  'that,  if  land  is  limited  to  an  unborn 
person  during  his  life,  a  remainder  cannot  be  limited,  so  as  to 
confer  an  estate  by  purchase  on  that  person's  issue.'  .  .  .  The 
rule  against  perpetuities  was  invented  much  later,  on  account 
of  the  law  of  shifting  uses  and  executory  devises.  .  .  .  The 
old  rule  against  double  possibilities  is  a  rule  that  has  not  been 
abrogated."    Lopes,  L.  J.,  said:  "That  there  was  an  old  rule 
that  an  estate  could  not  be  limited  to  an  unborn  child  of  an 
unborn  person  has  been  admitted,  and,  in  fact,  cannot  be  denied. 
It  was  an  old  rule  originating  out  of  the  feudal  system.    But 
it  is  said  that,  although  this  old  rule  did  once  exist,  it  has  been 
superseded  by  the  rule  against  perpetuities.  ...  I  have  no 
doubt  . .  .  that  these  are  two  independent  and  coexisting  rules." 
§  298  c.   The  most  striking  thing  about  the  opinions  both 
of  Kay,  J.,  and  of  the  judges  of  the  Court  of  Appeal  in  Whitby 
v.  Mitchell  is  the  way  in  which  they  rest  on  the  opinion  of  Mr. 
Joshua  Williams.     A  writer  in  the   Solicitors'  Journal  says :  * 
this  "shows  the  advantage  of  having  text-books  of  such  author- 
ity that  judges  of  the  Court  of  Appeal  and  the  youngest  stu- 
dents can  alike  take  their  law  from  them." 
1  34  Sol.  J.  343,  344. 


INTERESTS   SUBJECT  TO   THE   RULE.  281 

§  298  d.  The  decision  in  Whitby  v.  Mitchell  was  criticised 
by  Mr.  J.  Savill  Vaizey  in  the  Law  Quarterly  Review,1  by  an 
anonymous  writer  in  the  Law  Times,2  and  by  Mr.  T.  Cyprian 
Williams  in  the  Law  Quarterly  Review.3  Mr.  Vaizey  and 
Mr.  Williams  discussed  elaborately  the  authorities  given  in 
the  preceding  sections,  and  their  conclusion  coincided  with 
the  result  reached  in  the  first  edition  of  this  book. 

§  298  e.  Mr.  Ernest  C.  C.  Frith  and  Mr.  Charles  Sweet  have 
published  articles  4  defending  Whitby  v.  Mitchell.  The  matter 
has  now  been  so  thoroughly  threshed  out,  that  the  only  im- 
portant addition  to  be  hoped  for  in  aid  of  the  discussion  would 
seem  to  be  the  discovery  of  authorities  previously  unknown 
or  unnoticed.  Mr.  Sweet  has  recognized  this,  and  believes 
that  he  has  found  two  authorities  previously  unnoticed,  which 
bear  upon  the  question.  The  first  of  these  is  a  dictum  of 
Popham,  C.  J.,  hi  Chudkigh's  Case:5  "He  said,  if  a  feoff- 
ment  be  made  to  the  use  of  A.  for  life,  and  after  to  the  use  of 
every  person  who  should  be  his  heir,  one  after  another,  for  the 
term  of  their  life  of  every  such  heir  only;  in  this  case,  if  this 
limitation  should  be  good,  the  inheritance  would  be  in  nobody; 
but  this  limitation  is  merely  void,  for  the  limitation  of  a  use 
to  have  a  perpetual  freehold  is  not  agreeable  with  the  rule  of 
law  in  estates  in  possession."  To  this  may  be  added  a  later 
dictum  of  his  in  the  same  case:6  "If  the  said  case  before  put 
of  a  perpetual  freehold  should  be  maintained,  that  no  heir 
shall  have  but  an  estate  for  life,  and  that  the  inheritance  shall 
be  in  nobody,  what  escheat,  or  ward,  or  heriot,  or  other  profit 
will  accrue  to  the  King  or  other  lords?" 

§  298  /.  On  these  dicta  it  may  be  remarked  that  they  do 
not  appear  in  Popham's  own  report  of  his  opinion.7  And 
again  no  one  doubts  that  Chief  Justice  Popham  had  a  private 

1  6  Law  Quart.  Rev.  410.  «  1  Co.  120  a,  138  a. 

*  88  Law  Times,  95.  8  1  Co.  139  6. 

»  14  Law  Quart.  Rev.  234.  7  Pop.  70,  76,  84. 

«  14  Law  Quart.  Rev.  133;  and 
15  Law  Quart.  Rev.  71. 


282  THE   BULB   AGAINST   PERPETUITIES. 

conceit  that  there  could  not  be  "a  possibility  upon  a  possi- 
bility"; a  conceit  which  was  condemned  as  bad  law  by  Lord 
Coke  and  Lord  Nottingham.1  But,  it  is  submitted,  Chief 
Justice  Popham  had  not  here  in  mind  any  rule  that  there 
could  not  be  a  possibility  upon  a  possibility,  either  in  the 
form  given  to  it  in  modem  times  that  after  a  life  estate  to 
an  unborn  person  you  cannot  give  an  estate  to  that  person's 
child,  or  in  any  other  form.  If  he  had,  he  would  have  said 
that  A.  would  have  had  an  estate  for  life  and  his  heir,  a  re- 
mainder for  life,  and  that  the  other  limitations  would  be  void. 
What  he  meant  was  that  if  you  give  an  estate  in  fee  you  cannot 
add  a  provision  that  each  successive  tenant  shall  hold  only  for 
life,  a  proposition  which  is  undoubtedly  good  law,2  but  which 
has  nothing  to  do  with  a  possibility  upon  a  possibility.  To 
make  Popham's  dictum  any  authority  for  the  proposition  that 
you  cannot  have  an  estate  in  remainder  after  a  life  estate  to 
an  unborn  person,  we  have  to  suppose  that  he  meant  to  say 
that  the  life  estate  to  A.  was  good;  that  the  life  estate  to 
A.'s  heir  was  good;  and  that  the  other  estates  were  void;  it 
is  submitted  that  it  is  impossible  to  extract  such  a  meaning 
from  the  passage. 

§  298  g.  Mr.  Sweet's  second  authority  is  a  passage  in  the 
Touchstone:  "Uses  that  are  against  the  rules  of  the  common 
law,  shall  not  be  executed  by  this  statute:  and  therefore,  if  a 
feoffment  be  made  to  the  use  of  A.  for  life,  and  after  to  the 
use  of  every  person  that  shall  be  his  heir  one  after  another  for 
term  of  his  life  .  .  .  these  uses  shall  not  be  executed,  because 
these  limitations  are  wholly  void."  3  This  is  evidently  taken 
from  Popham's  dictum,  and  the  same  remark  is  applicable  to 
it  as  to  that  dictum. 

§  298  h.  It  is  likely  enough  that  if  the  case  of  a  remainder 
to  an  unborn  person  for  life,  with  remainder  to  such  unborn 
person's  son,  had  been  presented  to  the  courts,  they  would 
have  invented  some  rule  to  declare  the  latter  remainder  void, 

1  See  §5  125,  133,  ante.  *  Shep.  Touch.  506. 

«  5  656,  post. 


INTERESTS  SUBJECT  TO   THE   RULE.  283 

but  that  any  such  rule  had  in  fact  been  invented  before  the  Rule 
against  Perpetuities  is,  so  far  as  the  evidence  goes,  a  pure  fic- 
tion. Some  rule  restraining  the  creation  of  remote  interests 
was  certain  some  time  or  other  to  be  formulated.  The  rise 
and  development  of  the  Rule  against  Perpetuities  through  a 
series  of  years  is  plainly  to  be  read  in  the  reports.  No  ref- 
erence to  any  prior  rule  is  to  be  found  until  a  hundred  years 
after  the  Rule  against  Perpetuities  was  established.  It  re- 
quires a  pretty  robust  faith  in  the  infallibility  of  Mr.  Joshua 
Williams  to  believe  in  the  real  existence  of  such  prior  rule. 
The  matter  is  in  this  singular  condition.  On  the  one  hand 
there  are  assertions  by  some  of  the  most  distinguished  judges 
and  writers  that  before  the  Rule  against  Perpetuities  was 
adopted  there  was  in  existence  a  rule  that  after  a  Me  estate 
to  an  unborn  person  there  cannot  be  a  remainder  to  his  issue; 
and  on  the  other  hand  there  is  absolutely  no  evidence  what- 
ever that  those  assertions  are  correct.1 

§  298  hh.  Mr.  Sweet  is  now  of  opinion,  "after  some  hesita- 
tion," that  there  is  a  rule  against  "two  successive  contingent 
remainders"  or  "a  contingent  remainder  on  a  contingent  re- 
mainder," which  is  not  identical  with  the  rule  hi  Whitby  v. 
Mitchell  against  a  contingent  remainder  to  the  issue  of  an 
unborn  person  preceded  by  a  contingent  remainder  to  such 
unborn  person.2  There  have  been  some  recent  judicial  ex- 
pressions supporting  this  view:  In  re  Frost; 3  Whitting  v.  Whit- 
ting;  4  Witt  of  Malin; 5  and  very  recently  a  single  decision, 
In  re  Park's  Settlement*  It  is  impossible  to  say  what  are  the 
limits  of  the  doctrine  hi  these  cases.  It  seems  almost  as 
objectionable  as  the  notion  of  a  possibility  on  a  possibility. 
Mr.  Sweet  himself  says,  with  regard  to  In  re  Park's  Settlement, 


1  For  a  further    discussion    of          *  12  Columbia   Law   Rev.  199, 
Mr.    Sweet's    view   see   App.    K,      216;  29  Law  Quart.  Rev.  304. 
§931;  and  cf.  the  opinions  of  the  *  43  Ch.  D.  346. 

learned   judges  in  Will  of   Malin,  «  53  Sol.  J.  100. 

[1912]  Viet.  L.  R.  259.  •  [1912]  Viet.  L.  R.  259,  269. 

•  [1914]  1  Ch.  595. 


284  THE   RULE   AGAINST   PERPETUITIES. 

the  only  case  decided  squarely  on  such  a  doctrine:  "Having 
regard  to  these  authorities  [Re  Frost  and  Whitting  v.  Whitting] 
it  is  difficult  to  see  how  the  learned  judge  could  have  decided 
differently,  but  the  result  is  unsatisfactory,  not  to  say  absurd."1 

§  298  i.  The  case  of  Whitby  v.  Mitchell  decides  that  there  is 
a  doctrine  other  than  the  Rule  against  Perpetuities  which  ap- 
plies to  contingent  remainders,  but  it  does  not  decide  that  the 
Rule  does  not  apply  to  them;  on  the  contrary,  it  rather  implies 
that  it  does;  and  it  has  now  been  determined  that  the  Rule 
does  apply  to  them.  In  re  Frost.2  In  re  Ashforth.3  Whitby  v. 
Von  Luedecke.4 

§  299.  (3)  Rights  of  Entry  for  Condition  Broken.  —  When 
a  feoffment  was  made  on  condition  at  common  law,  a  right 
of  entry  for  condition  broken  remained  in  the  feoffor.5  Such 
a  right  was  not  affected  by  the  Statute  Quia  Emptores.6  In 
the  older  books  there  are  instances  of  feoffments  and  grants  on 
condition,  but  the  objection  of  remoteness  was  no  more  taken 
to  them  than  it  was  to  other  future  interests.7  Afterwards 
the  practice  of  entering  for  condition  broken  became  obsolete. 
Provisions  conditional  in  form  were  construed  as  creating 
a  present  trust,  and  not  as  true  conditions,  and  consequently 
there  came  to  be  little  occasion  for  applying  the  Rule  against 
Perpetuities.8  It  is  true  that  in  some  English  cases  words  of 
condition  could  not  have  been  held  to  create  a  trust,  but  as 
giving  only  a  right  of  entry  to  determine  an  estate.  But  no 
instance  has  been  discovered  of  such  a  condition,  for  longer 
than  a  lifetime,  attached  to  a  fee  simple,9  except  Flower  v. 

1  30  Law  Quart.  Rev.  135,  357.  Rule  against  Perpetuities  does  not 

1  43  Ch.  D.  246.  apply  to  common-law  interests,  as 

»  [1905]  1  Ch.  535.  to  which  see  §§  299  et  seq.,  post. 
4  [1906]    1    Ch.    783,    and     so  §  12,  ante. 

Will  of  Malin,  [1912]  Viet.  L.   R.  §  30,  ante. 

259.  §  123,  ante. 

Mr.    Charles    Sweet,    1    Jann.  §  282,  note,  ante. 

Wills  (6th  ed.)  368,  369,  does  not  Such  conditions,  for  instance, 

regard  these  decisions  as  satisfac-  names  and  arms  clauses,  are  often 

tory;   as  is  natural,  for  they  are  attached  to  estates  tail;  but  as  they 

inconsistent  with  his  view  that  the  can  be  destroyed  by  fine  or  re- 


INTERESTS    SUBJECT   TO    THE   RULE.  285 

Hartopp,1  where  the  condition  was  held  to  be  destroyed,  and 
no  question  of  remoteness  was  raised.  The  Real  Property  Com- 
missioners, indeed,  in  their  Third  Report,  say:  "The  following 
case  frequently  occurs  in  practice,  and,  as  far  as  we  know,  has 
never  been  determined;  an  estate  is  devised  to  A.  B.,  'his  heirs 
and  assigns/  on  condition  that  he  and  they  should  take,  and 
continue  to  use,  the  name  and  arms  of  C.  D."  2  One  hesitates 
to  doubt  a  statement  of  this  kind  made  by  so  distinguished  a 
body,  but  considerable  research  has  disclosed,  neither  in  the 
reports,  nor  in  the  text-books,  nor  in  the  books  of  precedents, 
any  suggestion  of  adding  such  a  condition  extending  beyond 
a  lifetime  to  a  conveyance  in  fee  simple.  Nor  does  it  seem  a 
likely  occurrence.  A  person  with  so  strong  a  desire  to  pre- 
serve an  estate  in  his  family  name  as  to  insert  such  a  clause 
would  be  almost  certain  to  put  the  estate  into  strict  settle- 
ment. Besides  if  the  estate  were  given  in  fee  simple,  it  would 
either  be  to  the  heir,  in  which  case  the  condition  would  be  in- 
operative, or  it  would  be  given  with  the  desire  to  exclude  the 
heir,  and  in  that  case  it  would  be  unlikely  that  a  condition 
should  be  inserted  which  would  carry  the  estate  to  the  heir. 

§  300.  The  Real  Property  Commissioners,  in  their  Third 
Report,3  also  say  of  such  rights  of  entry  that  they  seem  not 
to  be  confined  within  the  Rule,  but  that  "they  are  clearly 
within  the  policy,  which  the  law  has  adopted  with  respect  to 
perpetuities." 

§  300  a.  The  two  reasons  which  have  been  suggested  for 
excluding  rights  of  entry  for  breach  of  condition  from  the 
operation  of  the  Rule  against  Perpetuities  are:  (1)  That  they 
are  common-law  interests.  But  the  Rule  applies  to  common- 
law  interests.4  (2)  That  they  can  be  released.  But  interests 
which  can  be  aliened  or  released  are  within  the  Rule.5 

covery,  no  question  of  remoteness  jection  in  connection  with  contin- 

arises  with  regard  to  them.  gent  remainders,  §§  296-298,  ante. 

1  6  Beav.  476.  See  also  §§  312,  315,  316,  319,  321, 

2  P.  36.  323,  post. 

*  P.  36.  •  See  Chap.  VII.,  ante. 

4  See  the  remarks  on  this  ob- 


286  THE   RULE  AGAINST   PERPETUITIES. 

§  301.  The  theory  of  the  Real  Property  Commissioners 
that  rights  of  entry  for  breach  of  condition  are  not  within  the 
Rule  is  denied  by  Mr.  Lewis  l  and  by  Mr.  Sanders.2  In  Re 
Madeay3  there  was  a  devise  to  the  testator's  brother,  "on 
the  condition  that  he  never  sells  out  of  the  family."  Jessel, 
M.  R.,  held  that  the  condition  was  good.  He  remarked: 
"First  of  all,  it  is  to  be  observed  that  the  condition,  good  or 
bad,  is  confined  within  legal  limits;  it  is  applicable  merely 
to  the  devisee  himself,  and  therefore  is  not  void  on  any  ground 
of  remoteness."4  And  again:  "It  is  not,  strictly  speaking, 
limited  as  to  time,  except  in  this  way,  that  it  is  limited  to  the 
life  of  the  first  tenant  in  tail; 6  of  course,  if  unlimited  as  to  time, 
it  would  be  void  for  remoteness  under  another  rule."  6 

§  302.  Afterwards,  m  Dunn  v.  Flood,"1  there  was  a  bill  by  a 
vendor  for  specific  performance.  The  land  was  subject  to  a 
condition  that  if  it  was  used  for  certain  trades,  the  grantor 
might  enter  and  take  the  rents  until  the  trades  were  discon- 
tinued, and  for  three  months  longer.  North,  J.,  held  that 
the  condition  was  void  for  remoteness  and  no  objection  to  a 
decree  for  specific  performance,  although  he  refused  the  de- 
cree on  other  grounds.8  And  now  In  re  Hollis's  Hospital,9 
Byrne,  J.,  in  an  elaborate  opinion,  has  held  that  common-law 
conditions  are  subject  to  the  Rule  against  Perpetuities,  al- 
though he  refused  to  force  a  title  dependent  on  the  invalidity 
of  such  a  condition  upon  a  purchaser.  And  in  In  re  Da  Costa  10 

1  Perp.  616,  617.    Whether  the  7  25  Ch.  D.  629. 

condition  attached  at  common  law  8  In  the  Court  of  Appeal  judg- 

to  an  exchange  is  without  the  Rule  ment    was    affirmed.      Baggallay, 

against  Perpetuities,  as  Mr.  Lewis  L.  J.,  said:  "We  have  not  heard 

thinks  (Perp.  615),  is  idle  to  inquire,  the  counsel  for  the  defendant,  but 

since  exchanges  became  obsolete  be-  as  at  present  advised  I  concur  with 

fore  the  Rule  was  established.  Mr.  Justice  North  that  this  right 

1  1  Sand.  Uses  (5th  ed.)  207.  could  not  be  enforced,  being  void 

*  L.  R.  20  Eq.  186.  under  the  Rule  against  Perpetui- 
4  L,  R.  20  Eq.  187,  188.  ties."    Dunn  v.  Flood,  28  Ch.  D. 
1  It  should  be  "tenant  in  fee  586,  592. 

simple."  •  [1899]  2  Ch.  540. 

•  L.  R.  20  Eq.  190.  10  [1912]  1  Ch.  337. 


INTERESTS   SUBJECT  TO   THE   RULE.  287 

Eve,  J.,  held  that  a  common-law  condition  was  obnoxious 
to  the  Rule  against  Perpetuities.  In  face  of  these  opinions  and 
cases,  the  statement  of  the  Real  Property  Commissioners,  un- 
supported by  any  case  or  dictum,  must  be  deemed  erroneous.1 
§  303.  Mr.  Lewis,  although  holding  that  rights  to  enter 
for  condition  broken  are  in  general  obnoxious  to  the  Rule 
against  Perpetuities,  yet  believes  that  rights  of  entry  for 
non-payment  of  rent  are  not  within  it.2  This  is  true  as  to 
conditions  attached  to  leases  for  years;  the  interest  of  the  re- 
versioner  is  a  vested  interest,  and  to  that  the  Rule  does  not 
apply.3  So  the  right  to  enter  and  hold  until  the  arrears  of 
rent  are  discharged  is,  perhaps,  like  the  right  to  distrain,  merely 
a  matter  of  remedy  and  not  within  the  Rule.4  But  a  right  con- 
tained in  a  conveyance  in  fee  for  the  grantor,  on  failure  of 
payment  of  rent,  to  enter  and  be  in  of  his  old  estate  seems 
like  any  other  condition,  to  be  within  both  the  letter  and  the 
spirit  of  the  Rule.5  Such  rights,  indeed,  existed  in  early  years, 
when  no  objection  to  the  remoteness  of  any  future  interests 

1  See  Marsden,  Perp.  4,  5;  Gray,  Lewis,   Perp.  619.     See  Daniel  v. 
Restraints  on  Alienation,  §§  42,  51.  Stepney,  L.  R.  7  Ex.  327,  L.  R.  9 
Mr.  Challis,  in  his  treatise  on  Real  Ex.    185,   in  which   the  Court  of 
Prop.  (3d  ed.)  187-190,  is  of  a  con-  Exchequer     Chamber,     overruling 
trary  opinion;   and   agreeing  with  the  Court  of  Exchequer,  held  that 
him  are  Mr.  Charles  Sweet  in  his  a  right  under  a  lease  for  forty  years 
editions    of    Challis    and   Jannan  to  distrain  for  rent  on  other  land 
(Challis,  Real  Prop.  (3d  ed.)  210  et  of  the   lessee    was  good,   without 
seq.;  1  Jarm.  Wills  (6th  ed.)  374),  the  objection  of  remoteness  being 
and  Mr.  Cyprian  Williams,  1  Vend.  raised.     Marsden,  Perp.  248,  249. 
&  P.  (2d  ed.)  677,  678.    And  that  It  was  perhaps  good  as  a  matter  of 
a  common-law  condition  was  not  remedy. 

within  the  Rule  against  Perpetui-  6  See    99    L.   T.    596;   Elphin- 

ties  was  said,  after  full  discussion  stone,  Introd.  to  Conv.   (4th  ed.) 

hi  Ireland  in  1895,  A.  G.  t;.  Cum-  115;    Copinger   &    Munro,    Rents, 

mings,  [1906]  1  I.  R.  406.  64-68;  1  Wms.  Vend.  &  P.  (2d  ed.) 

2  Perp.  618,  619.  435.     But  in  17  Law  Quart.  Rev. 

3  §  209,  ante.  32,   Mr.   Arthur  J.   Mackey  in  a 

4  See    §  273  a,    ante;   1    Wms.  learned  article  contends  that  such 
Vend.  &  P.  (2d  ed.)  435,  436;  17  a  right  to  enter  is  not  obnoxious  to 
Law  Quart.  Rev.  32.     So  though  the    Rule.     Cf.    Foulke,  Treatise, 
the  right  is  to  enter  on  lands  not  §  367. 

included  in  the  grant  or  demise. 


288  THE   RULE  AGAINST  PERPETUITIES. 

had  been  made; *  but  in  later  times  they  have  been  disused, 
and  rights  to  enter  and  hold  until  rent  is  paid  have  been  em- 
ployed instead;  and,  even  when  absolute  in  form,  they  are 
treated  in  equity  as  only  entitling  the  grantor  to  hold  until 
rent  is  paid.2 

§  304.  Though  rights  of  entry  for  condition  broken  are 
within  both  the  letter  and  the  spirit  of  the  Rule  against  Per- 
petuities; though  there  is  nothing  in  the  history  of  the  Rule 
to  exempt  them  from  its  operation;  though  they  are  held  to 
be  subject  to  it  in  England;  though  the  practical  inconven- 
ience of  excluding  them  is  very  great;  and  though  this  incon- 
venience is  especially  great  in  America,  where  the  heirs  from 
whom  a  release  must  be  sought  may,  and  often  do,  multiply 
enormously  with  every  succeeding  generation,  —  yet  in  America 
conditions  violating  the  Rule  against  Perpetuities  have  been 
repeatedly  upheld,  and  forfeitures  for  their  breach  enforced.3 

§  305.  It  is  true  that  in  almost  none  of  these  instances  has 
the  objection  of  remoteness  occurred  to  either  court  or  coun- 
sel. Those  cases  in  which  it  is  reported  to  have  been  men- 
tioned, either  at  the  bar  or  from  the  bench  down  to  1886, 
the  date  of  the  first  edition  of  this  book,  are  as  follows:  — 

(1)  Canal  Bridge  v.  Methodist  Religious  Soc.4  (1847).  Mr. 
Fletcher,  as  counsel  for  the  tenant,  objected  to  a  condition 
that  land  granted  should  be  forever  appropriated  to  the  main- 
tenance of  public  worship,  on  the  ground  that  it  attempted  to 
create  a  perpetuity,  citing  Lewis  on  Perpetuities.  This  is 
the  first  reported  instance  of  the  question  of  remoteness  being 
discussed  by  counsel  in  connection  with  conditions.  The 
Court  decided  in  favor  of  the  tenants  on  another  ground, 
and  took  no  notice  of  the  objection. 

1  Lit.  §§  325-327.  section,  where  a  right  to  enter  and 

2  Co.  Lit.  203  a,  Butler's  note,  hold  not  only  till  the  default  ceased, 
(3).    3  Cruise,  Dig.  286.    2  L.  C.  but  for  three  months  more,   was 
in  Eq.  (5th  ed.)  1117-1120.    Tud.  considered  to  be  bad. 

L.  C.  in  Real  Prop.  (3d  ed.)  312.  3  See    Kales,  Fut.    Int.    in  111. 

See  Gilbert,  Rents,   135-137.     Cf.      §  257;  Foulke,  Treatise,  §  367. 
Dunn  v.  Flood,   hi  the  preceding  4  13  Met.  335,  348. 


INTERESTS   SUBJECT  TO   THE   RULE.  289 

(2)  Brattle  Square   Church   v.  Grant l   (1855).     Here  is  a 
dictum  of  Bigelow,  J.,  that  the  Rule  against  Perpetuities  does 
not  govern  rights  of  entry  for  condition  broken,  because  such 
rights  can  be  at  all  times  released.    The  unsoundness  of  this 
reason  has   been   shown.2     The  most   singular  thing  about 
the  remark  is  that  in  this  very  case  an  executory  devise  which 
could  at  any  time  have  been  released,  precisely  like  a  right  to 
enter  for  breach  of  condition,  was  held  void  for  remoteness. 

(3)  Indian   Orchard    Canal   Co.  v.  Sikes3   (1857).     Land 
was  conveyed  to  A.  on  condition  that  no  building  thereon 
should  be  occupied  or  used  for  the  sale  of  spirituous  liquors. 
On  a  writ  of  entry  by  the  grantor,  based  on  a  breach  of  con- 
dition, the  judge  ruled  that  a  sale  with  the  knowledge  of  A. 
was  a  breach,  but  that  a  sale  without  A.'s  knowledge  was  not 
a  breach.    The  jury  found  for  the  tenant,  and  the  demandant 
alleged  exceptions.     At  the  argument  on  the  exceptions  the 
counsel  for  the  tenant  contended,  inter  alia,  that  the  condi- 
tion was  void  as  an  attempt  to  create  a  perpetuity.    The  full 
Court  gave  judgment  on  the  verdict  without  delivering  any 
opinion,  presumably  on  the  grounds  stated  at  the  trial. 

(4)  Sharon  Iron   Co.    v.    Erie 4    (1861).      Counsel  argued 
that  a  condition  violated  the  Rule  against  Perpetuities;  but 
as  the  Court  held  that  there  had  been  a  waiver  of  the  breach, 
if  any,  it  had  no  occasion  to  consider,  and  did  not  consider, 
the  objection  on  the  score  of  perpetuity. 

(5)  Hunt  v.  Wright5  (1867).     An  undivided  part  of  land 
was  conveyed  to  H.  and  his  heirs,  on  condition  that  the  prem- 
ises should  be  held  by  H.  and  his  heirs  and  assigns  in  common 
with  the  tenants  of  the  other  undivided  parts,  without  parti- 
tion or  division,   subject  to  certain  articles  of  association. 
Held,  on  a  petition  by  H.  for  partition,  that  he  was  estopped 
to  have  it.    The  Court  were  of  opinion  that  this  condition  was 
not  "invalid  as  creating  a  perpetuity;"  that  the  condition 

1  3  Gray,  142,  148.  4  41  Pa.  341. 

*  Chap.  VII.,  ante.  6  47  N.  H.  396. 

8  8  Gray,  562. 


290  THE   RULE   AGAINST   PERPETUITIES. 

was  not  repugnant;  that  tenancies  in  common  were  not  com- 
pulsorily  partible  at  common  law;  that  there  was  no  restraint 
on  alienations;  and  that  the  articles  could  be  dissolved  at  any 
time.  Assuming  that  the  condition  was  not  repugnant,  and 
would  have  been  good  if  confined  within  limits,  there  would 
seem  to  be  no  difference  between  it  and  any  other  remote 
contingent  interest.  Though  the  Court  speak  of  the  condi- 
tion as  creating  a  perpetuity,  they  do  not  seem  to  have  contem- 
plated the  question  of  remoteness,  but  to  have  used  this  term 
as  meaning  "an  inalienable  interest."  l 

(6)  French  v.  Old  South  Society2  (1871)  is  the  first  case 
in  the  books  in  which  the  question  of  a  condition  being  bad 
for  remoteness  was  presented  by  counsel  and  passed  upon  by 
the  Court.  A  pew  was  there  sold  by  the  defendants,  on  con- 
dition that  the  grantee  and  his  legal  representatives  should 
pay  to  the  defendants  the  tax  assessed  on  the  pew,  and  also 
on  the  condition  that  he  or  they  should  offer  the  pew  to  the 
defendants  upon  leaving  the  meeting-house.  Chapman,  C.  J., 
said:  "The  doctrine  that  conditions  against  alienation  in  & 
conveyance  are  void  has  never  been  held  to  be  applicable  to- 
conveyances  of  pews,  for  the  reasons  stated  by  Chief  Justice 
Shaw,  and  cited  above.  The  tenure  by  which  pews  are  held 
in  this  Commonwealth  is  peculiar.  It  is  objected  that  the 
Rule  against  Perpetuities  makes  the  conditions  of  the  plaintiff's, 
deed  void.  If  a  perpetuity  may  be  defined  as  'an  estate  un- 
alienable  though  all  mankind  join  in  the  conveyance'  (see 
Scatterwood  v.  Edge,  1  Salk.  229),  or  'where,  if  all  that  have 
interest  join,  yet  they  cannot  bar  or  pass  the  estate'  (see 
Washborn  v.  Downs,  1  Ch.  Cas.  213),  here  is  no  violation  of 
the  Rule;  for  the  plaintiff  and  defendants  could  at  any  time 
join  in  a  conveyance  of  the  property.  The  grantee  took  an 
estate  on  condition  subsequent,  and  the  possibility  of  reverter 
remaining  in  the  grantor  on  breach  of  the  condition  is  not 

1  See  8  141  e,  ante;  Gray,  Re-          *  106  Mass.  479. 
etraints    on    Alienation    (2d    ed.), 
§30. 


INTERESTS   SUBJECT   TO   THE   RULE.  291 

subject  to  the  Rule  against  Perpetuities,  even  if  the  pew  is 
held  as  real  estate,  Brattle  Square  Church  v.  Grant,  3  Gray, 
142."  But  the  suggested  definition  of  a  perpetuity  is  in- 
correct; l  and  the  case  of  Washborn  v.  Downs,  and  the  remark 
cited  from  it,  had  reference  to  the  barring  of  an  estate  tail. 
The  opinion  of  the  learned  Chief  Justice  goes  upon  the  assump- 
tion that  the  alienation  of  pews  can  be  indefinitely  restrained. 
This  takes  them  out  of  the  class  of  ordinary  interests  to  which 
the  Rule  against  Perpetuities  applies,  and  classes  them  with 
charities,  which  are  not  obnoxious  to  the  objection  of  remote- 
ness. How  far  this  assumption  is  correct,  and  how  far  a  pew 
in  a  church  can  be  considered  as  devoted  to  charity,  particu- 
larly if  it  is  in  the  church  of  a  religious  body  which  is  not 
itself  a  charity,2  this  is  not  the  place  to  consider.  It 'is  obvious 
that  the  case  is  of  slight  authority  on  the  objection  of  remote- 
ness to  conditions  generally. 

(7)  Lowe  v.  Hyde 3  (1876).    In  this  case  counsel  contended 
that  a  condition  for  the  maintenance  of  a  college  was  bad  as  a 
perpetuity.    The  Court  held  that  there  had  been  no  breach. 

(8)  Tobey  v.  Moore*   (1881).     Here   it  was  held  that  re- 
strictions on  the  use  of  land,  not  involving  any  risk  of  forfeiture, 
were  free  from  any  objection  on  the  ground  of  remoteness. 
The  Court  said:    "The  rule  against  Perpetuities,  which  governs 
limitations  over  to  third  persons  to  take  effect  in  the  future, 
has  never  been  held  applicable  to  conditions,  a  right  of  entry  for 
the  breach  of  which  is  reserved  to  the  grantor  or  devisor  and  his 
heirs,  and  may  be   released  by  him  or  them   at   any  time. 
Sugd.  Vend.  (14th  ed.),  596.    Gray  v.  Blanchard,  8  Pick.  284. 
Austin  v.  Cambridgeport  Parish,  21  Pick.  215.    Brattle  Square 
Church  v.  Grant,  3  Gray,  142,  148,  161.    French  v.  Old  South 
Society,  106  Mass.  479.    Cowell  v.  Springs  Co.,  100  U.  S.  55. 
But  this  case  does  not  require  us  to  consider  whether  there  are 

1  See  Chap.  VII.,  ante.  »  39  Wis.  345. 

1  Old  South  Soc.  v.  Crocker,  119          «  130  Mass.  448. 
Mass.    1.    But   now   cf.    Sears   v. 
A.  G.  193  Mass.  551. 


292  THE   RULE   AGAINST  PERPETUITIES. 

any  conditions  strictly  so  called  to  which  the  rule  should  be 
applied."  The  above,  with  Giles  v.  Boston  Society,1  Piper  v. 
Moulton*  and  Coit  v.  Comstock*  considered  later,4  were  the 
only  reported  cases  in  which  the  objection  of  remoteness  with 
reference  to  conditions  had,  at  the  date  of  the  first  edition  of 
this  book,  been  passed  upon  or  suggested  by  court  or  counsel 
in  America.5 

§  306.  But  although  French  v.  Old  South  Society  was  the 
only  case  in  which  any  court  in  America  had  passed  upon 
the  objection  of  remoteness  in  a  condition,  and  the  facts  of 
that  case  make  it  of  little  value  as  a  precedent,  yet  there  have 
been  numerous  decisions  in  America  by  which  conditions 
violating  the  Rule  against  Perpetuities  have  been  sustained, 
without  any  objection  of  remoteness  apparently  occurring  to 
any  one.  They  are  given  in  a  note.6 

§  307.  In  very  many  cases  also  in  which  the  effect  of  con- 
ditions extending  beyond  the  limits  of  the  Rule  against  Per- 
petuities has  been  involved,  but  in  which  the  courts  have 

10  Allen,  355.  82.    Smith  v.  Barrie,  56  Mich.  314. 

72  Me.  155.  Sioux  City  St.  P.  R.  Co.  v.  Singer, 

51  Conn.  352.  49  Minn.  301.    Cornelius  v.  Ivins, 

§  311,  post.  2  Dutch.  376.    Jackson  v.  Topping, 

In  1  Am.  Law  Rev.  265,  is  an  1  Wend.   388.     Plumb  v.  Tubbs, 

article  by   Mr.   F.   C.   Loring,   in  41   N.   Y.   442.     Howell   v.   Long 

which  he  contends  that  conditions  Island  R.  R.  Co.,  37  Hun,  381.  Up- 

are  within  the  Rule  against  Per-  ington  v.  Corrigan,  151  N.  Y.  143. 

petuities.    For  later  cases  in  which  Sperry  v.  Pond,  5  Ohio,  387.    Pickle 

the    objection    is    considered,    see  v.  M'Kissick,  21  Pa.  232.     Court- 

§  310  a,  post.  ney  v.  Keller,  4  Pennyp.  38.     Le- 

8  Cowell    v.   Springs    Co.,    100  high  Coal  Co.  v.  Gluck,  5  Pa.  C.  C. 

U.  S.  55.    Carter  v.  Doe,  21  Ala.  72.  662.    Fly  v.  Guinn,  2  Tex.  Unrep. 

Stock  v.  Stipe,  12  Ind.  74.    Indian-  Gas.  300.     Martin  v.  Ohio  River 

apolis  R.  R.  Co.  v.  Hood,  -66  Ind.  R.  R.  Co.,  37  W.  Va.  349.    Horner 

580.    Taylor  v.  Cedar  Rapids,  etc.  v.  Chicago,  etc.  R.  R.  Co.,  38  Wis. 

R.  R.  Co.,  25  Iowa,  371.    O'Brien  165.      Pepin    County    v.    Prindle, 

v.  Wetherell,  14  Kans.  616.    Gray  61  Wis.  301.    Goyeau  v.  Gt.  West 

v.  Blanchard,  8  Pick.  284.    Austin  R.  Co.,  25  Grant,  62.    Re  Melville, 

v.  Cambridgeport  Parish,  21  Pick.  11  Ont.  626.    Cf.  Hardy  v.  Gallo- 

215.     Guild  v.  Richards,  16  Gray,  way,  111  N.  C.  519. 

309.    Langley  v.  Chapin,  134  Mass. 


INTERESTS  SUBJECT  TO  THE  BULB. 


293 


held  that  there  has  been  no  forfeiture,  either  because  there 
has  been  no  breach  or  no  entry,  or  because  the  right  to  enter 
has  been  waived,  released,  or  destroyed,  the  validity  of  the 
conditions  has  been  declared  or  assumed  as  unquestioned 
without  any  objection  on  the  ground  of  remoteness.1 

§  308.  And  further,  in  those  cases  in  which  the  condition 
must  be  broken,  if  at  all,  within  lives  in  being  and  twenty- 
one  years,  no  suggestion  has  ever  been  made  in  America  that 
this  circumstance  is  what  saves  the  condition  from  being  too 
remote.2 


1  Among  such  cases  are  Henry 
v.  Etowah  County,  77  Ala.  538; 
Collins  Manufacturing  Co.  v. 
Marcy,  25  Conn.  242;  Warner  v. 
Bennett,  31  Conn.  468;  Price  v. 
School  Directors,  58  111.  452; 
Carter  v.  Branson,  79  Ind.  14;  Gray 
v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  189 
111.  400;  Lyman  v.  Suburban  R.  R. 
Co.,  190  111.  320;  Kenner  v.  Amer. 
Contract  Co.,  9  Bush,  202;  Hooper 
v.  Cummings,  45  Me.  359;  Osgood 
v.  Abbott,  58  Me.  73;  Crane  v. 
Hyde  Park,  135  Mass.  147;  Mich- 
igan State  Bank  v.  Hastings,  1 
Doug.  (Mich.)  225;  Memphis  & 
Charleston  R.  R.  Co.  v.  Neighbors, 
51  Miss.  412;  Gfflis  v.  Bailey,  17 
N.  H.  18;  21  N.  H.  149;  Gage  v. 
School  District  in  Boscawen,  64 
N.  H.  232;  Den  d.  Southard  v. 
Central  R.  R.  Co.,  2  Dutch.  13; 
McKelway  v.  Seymour,  5  Dutch. 
321;  De  Peyster  v.  Michael,  6  N.  Y. 
467,  506;  Ludlow  v.  N.  Y.  &  H.  R. 
R.  Co.,  12  Barb.  440;  Underbill  v. 
Saratoga,  etc.  R.  R.  Co.,  20  Barb. 
455;  Tinkham  v.  Erie  R.  Co.,  53 
Barb.  393;  Woodworth  v.  Payne, 
5  Hun,  551;  74  N.  Y.  196;  Towle 
v.  Remsen,  70  N.  Y.  303;  McKis- 
eick  v.  Pickle,  16  Pa.  140;  Sharon 
Iron  Co.  v.  Erie,  41  Pa.  341;  Ham- 


mond v.  Railroad  Co.,  15  So.  Car. 
10;  Boiling  v.  Petersburg,  8  Leigh, 
224;  Congregational  Soc.  v.  Stark, 
34  Vt.  243;  Mills  v.  Evansville 
Seminary,  58  Wis.  135;  Douglas  v. 
Hawes,  Ritchie  Eq.  (Nov.  Sc.)  146, 
152.  See  Conn.  Spiritualist  Camp- 
Meeting  Assoc.  v.  E.  Lyme,  54 
Conn.  152;  Barrie  v.  Smith,  47 
Mich.  130;  Watrous  v.  Allen,  57 
Mich.  362;  Bad  River  Lumbering 
Co.  v.  Kaiser,  82  Wis.  166. 

1  See,  for  instance,  Taylor  ». 
Sutton,  15  Ga.  103;  Voris  v.  Ren- 
shaw,  49  111.  425;  Wilson  v.  Wilson, 
86  Ind.  472;  Rowell  v.  Jewett,  69 
Me.  293;  71  Me.  408;  Hayden  v. 
Stoughton,  5  Pick.  528;  Clapp  t>. 
Stoughton,  10  Pick.  463  (cf.  Brattle 
Square  Church  v.  Grant,  3  Gray, 
142,  161);  Blake  t;.  Blake,  56  Wis. 
392;  Delong  v.  Delong,  Id.  514; 
Gilchrist  v.  Foxen,  95  Wis.  428. 

In  the  cases  in  the  two  preced- 
ing sections  a  forfeiture  was  en- 
forced, or  there  was  an  attempt  to 
enforce  it.  There  are  also  cases  in 
which  a  condition  extending  be- 
yond the  limits  of  the  Rule  against 
Perpetuities  has  been  held  good 
where  the  question  presented  was 
whether  land  was  subject  to  a  valid 
incumbrance.  Such  are  Keening 


294 


THE   RULE   AGAINST  PERPETUITIES. 


§  309.  So  conditions  on  conveyances  in  fee,  reserving  rent 
giving  the  grantor  the  right  on  default  of  payment  to  enter, 
and  be  in  as  of  his  old  estate,  have  been  held  good  without 
any  suggestion  that  they  were  too  remote.1 

§  310.  This  great  consensus  of  authority,  although  without 
any  consideration  of  the  question  involved,  may  perhaps  be 
held  to  settle  the  law  for  the  United  States,  and  to  create  in 
this  country  an  exception,  arbitrary  though  it  be,  to  the  Rule 
against  Perpetuities. 

§  310  a.  Cases  subsequent  to  the  date  of  the  first  edition  of 
this  treatise,  in  which  the  inapplicability  of  the  Rule  against 
Perpetuities  to  conditions  has  been  assumed  sub  silentio,  have 
been  inserted  in  the  notes  to  the  preceding  sections,  but  there 


v.  Ayling,  126  Mass.  404;  Gibert 
v.  Peteler,  38  Barb.  488;  38  N.  Y. 
165;  Anon.,  2  Abb.  N.  C.  56;  Post 
v.  Weil,  8  Hun,  418;  Post  v.  Bern- 
heimer,  31  Hun,  247.  These  cases, 
however,  may  generally  be  sus- 
tained on  the  ground  that  equitable 
easements  and  not  true  conditions 
were  created.  §  282,  note,  ante. 

1  Wartenby  v.  Moran,  3  Call, 
491.  Jackson  v.  Demarest,  2 
Games,  382.  Van  Rensselaer  v. 
Snyder,  13  N.  Y.  299.  Van  Rens- 
eelaer  v.  Smith,  27  Barb.  104.  Van 
Rensselaer  v.  Ball,  19  N.  Y.  100. 
Van  Rensselaer  v.  Slingerland,  26 
N.  Y.  580.  Van  Rensselaer  v.  Den- 
nison,  35  N.  Y.  393.  Van  Rens- 
eelaer  v.  Barringer,  39  N.  Y.  1. 
Hosford  v.  Ballard,  39  How.  Pr. 
162;  39  N.  Y.  147.  Cruger  v. 
McLaury,  41  N.  Y.  219.  See 
Garrett  v.  Scouten,  3  Denio,  334; 
McCormick  v.  Connell,  6  S.  &  R. 
151;  Kenege  v.  Elliott,  9  Watts, 
258;  Robert  v.  Ristine,  2  Phila. 
62;  Stephenson  v.  Haines,  16  Ohio 
St.  478;  Cadwalader,  Ground  Rents, 
c.  8,  §§  359-372.  See  §  303,  ante. 


The  bad  results  of  allowing  con- 
ditions to  operate  at  remote  periods 
of  time  have  been  alleviated,  though 
not  removed,  by  the  strictness  with 
which  courts  have  construed  con- 
ditions, often  holding  them  as  per- 
sonal to  the  grantors  and  not 
passing  to  their  heirs.  Emerson 
v.  Simpson,  43  N.  H.  475.  Page  t>. 
Palmer,  48  N.  H.  385.  Skinner  v. 
Shepard,  130  Mass.  180.  See  also 
Merrifield  v.  Cobleigh,  4  Gush.  178; 
Den  d.  Southard  v.  Central  R.  R. 
Co.,  2  Dutch.  13;  Voris  v.  Ren- 
shaw,  49  111.  425;  Hunt  v.  Beeson, 
18  Ind.  380;  Jeffersonville,  etc.  R. 
Co.  v.  Barbour,  89  Ind.  375;  Lawe 
v.  Hyde,  39  Wis.  345.  So  in 
Mitchell  v.  Leavitt,  30  Conn.  587, 
it  is  said  that  a  "restriction  on  the 
use  of  real  estate,  where  it  does  not 
appear  that  either  some  individual 
or  the  public  would  be  benefited 
by  it,  would  be  contrary  to  public 
policy  and  void."  That  is,  a  con- 
dition which  does  not  create  an 
easement  or  trust  is  void,  —  a  very 
sensible  conclusion.  See  Barrie  v. 
Smith,  47  Mich.  130. 


INTERESTS   SUBJECT  TO  THE   RULE.  295 

> 

are  a  few  cases  in  which  the  topic  has  been  expressly  referred 
to.    They  are  as  follows: 

(1)  Theological  Education  Society  v.  A.  G.1   (1883).    The 
Court  refer  with  approval  to  Bigelow,  J.'s  dictum  in  Brattle 
Square  Church  v.  Grant,2  distinguishing  between  conditions  and 
conditional  limitations  as  subjects  for  the  Rule  against  Per- 
petuities.    They  held  that  the  provision  in  question  was  a 
conditional  limitation  and  not  a  condition. 

(2)  Tappan's  Appeal3  (1884).   Land  and  money  were  given 
by  will  to  an  ecclesiastical  corporation  on  condition,  and,  on 
breach  of  the  condition,  to  the  testator's  residuary  legatees 
and  devisees.     The  Supreme  Court  of  Errors  of  Connecticut 
held  that  the  condition  was  subsequent  and  the  gift  vested  im- 
mediately.   The  Court  further  said  that  the  condition  did  not 
violate  the  Connecticut  Statutes  against  remoteness.4   As  there 
had  been  no  breach,  this  point  was  immaterial,  but  the  Court 
assumed  throughout  the  discussion  that  conditions  were  sub- 
ject to  the  Rule  against  Perpetuities.5 

(3)  First  Universalist  Society  v.  Boland6  (1892).     In   this 
case  it  was  said  that  there  is  in  Massachusetts  such  a  thing  as 
a  determinable  fee,  and  that  the  possibility  of  reverter  after  it  is 
not  subject  to  the  Rule  against  Remoteness.7 

In  the  course  of  the  discussion  the  Court  remarks:  "It  has 
been  expressly  held  by  this  Court,  that  such  possibility  of  re- 
verter upon  breach  of  a  condition  subsequent  is  not  within  the 
Rule  against  Perpetuities.  Tobey  v.  Moore,  130  Mass.  448. 
French  v.  Old  South  Society,  106  Mass.  479.  If  there  is  any  dis- 
tinction in  this  respect  between  such  possibility  of  reverter  and 
that  which  arises  upon  the  determination  of  a  qualified  fee,  it 
would  seem  to  be  in  favor  of  the  latter.  But  they  should  be 
governed  by  the  same  rule.  If  one  is  not  held  void  for  remote- 

135  Mass.  285.  a  conditional  limitation,  and  not  of 

3  Gray,  142,  148.     See  §  305  a  condition? 

(2)  ante.    "  •  155  Mass.  171. 

52  Conn.  412.  7  The  correctness  of  this  is  dis- 

See  §  739,  post.  cussed,  §§  31-41,  ante,  and  §  312, 

Qu.  Was  not  this  the  case  of  and  App.  E,  §  774,  post. 


296  THE   RULE  AGAINST  PERPETUITIES. 

ness,  the  other  should  not  be.  The  very  many  cases  cited  in 
Gray,  Rule  against  Perpetuities,  §§  305,  312,  show  conclusively 
that  the  general  understanding  of  courts  and  of  the  profession 
in  America  has  been  that  the  rule  as  to  remoteness  does  not 
apply;  though  the  learned  author  thinks  this  view  erroneous 
in  principle." 

(4)  Palmer  v.  Union  Bank  l  (1892).     Bank  stock  was  be- 
queathed to  trustees  on  a  charitable  trust,  with  a  proviso  that 
if  the  trustees  fail  to  carry  out  the  trust,  "this  bequest  shall 
thenceforth  cease  and  determine,  and  said  stock  and  the  divi- 
dends or  profits  arising  therefrom  shall  thereupon  descend  to 
and  vest  in  my  heirs  at  law."    The  court  held  that  "heirs  at 
law"  meant  those  who  should  be  heirs  or  next  of  kin  of  the 
testator  at  the  time  of  breach,  and  not  those  who  were  heirs  or 
next  of  kin  at  his  death,2  and  that  therefore  this  was  the  case 
of  a  conditional  limitation  and  not  of  a  condition.    The  court 
then  goes  on  to  state  and  approve  the  distinction  between 
conditions  and  conditional  limitations  with  reference  to  the 
Rule  against  Perpetuities  set  forth  by  Bigelow,  J.,  in  Brattle 
Square  Church  v.  Grant,3  and  based  by  him  on  the  fact  that 
conditions  can  be  released  and  conditional  limitations  cannot. 
It  is  indeed  strange  that  Bigelow,  J.,  and  the  learned  judges 
who  have  followed  him  have  failed  to  observe  that  a  con- 
ditional limitation  to  a  person  ascertained  is  as  releasable  as 
a  condition. 

(5)  Hopkins  v.  Grimshaw  *  (1897).    In  this  case  it  was  held 
that  if  there  was  a  failure  of  the  trust  upon  which  land  was 
held,  the  resulting  trust  to  the  heirs  of  the  grantor  was  not 
obnoxious  to  the  Rule  against  Perpetuities.5    In  the  opinion 

»  17  R.  I.  627.  case  the  gift  was  to  "my  then  liv- 

1  This   is  against  universal  au-  ing  heirs,"  which  makes  just  the 

thority.    2   Jarm.  Wills   (6th  Am.  difference. 

ed.)  981-993.     Theob.  Wills  (5th          »  3  Gray,  142,  148.     See  §  305 

ed.)     310-313.      Hawkins,     Wills  (2),  ante. 

(2d  ed.)  125.    The  court  cites  Swin-          «  165  U.  S.  342,  356. 

burne,  Petitioner,  16  R.  I.  208,  hi          •  See  §  327,  post. 

support  of  its  decision,  but  hi  that 


INTERESTS   SUBJECT  TO   THE  RULE.  297 

the  Court  said:  "Even  when  the  first  gift  is  strictly  upon  con- 
dition subsequent,  requiring  an  entry  on  the  part  of  the  grantor 
or  devisor,  or  his  heirs,  to  revest  the  estate  in  him  or  them, 
the  American  Courts  have  treated  their  title  as  unaffected  by 
the  Rule  against  Perpetuities,"  citing  the  preceding  sections 
of  this  book. 

(6)  Wakefield  v.  Van  Tassell1  (1903).  It  was  here  held 
that  a  condition  not  to  build  a  grain  elevator  did  not  violate 
the  spirit  of  the  Rule  against  Perpetuities. 

§311.  In  Giles  v.  Boston  Society2  property  was  given  to 
the  defendant  on  condition  that  it  should  keep  the  testator's 
tomb  in  repair.  The  Court  held  that  on  the  facts  there  had 
been  no  breach  of  the  condition,  but  they  say:  "It  may  well 
be  doubted  whether  this  condition  to  maintain  a  private  tomb 
or  burial-place  was  not  void  as  tending  to  create  a  perpetuity." 
If  these  words  of  condition  are  to  be  held  as  imposing  a  trust,8 
then  the  authorities  cited  by  the  Court  are  strong  to  show  that 
such  a  trust  is  void;4  but  if  the  words  are  not  held  to  impose 
a  trust,  but  simply  to  impose  a  common-law  condition,  such 
condition  seems  no  more  obnoxious  to  the  Rule  against  Per- 
petuities than  any  other  would  be;  and  if  conditions  generally 
are  exempt  from  the  operation  of  the  Rule,  this  ought  to  be  also. 
The  same  remarks  apply  to  Piper  v.  Moulton5  and  Coit  v. 
Comstock.6 

§  311  a.  The  case  of  In  re  Tyler  7  confirms  the  correctness 
of  the  view  which  was  taken  in  the  preceding  section.  There 
a  fund  was  bequeathed  to  a  charity  on  condition  that  it  kept 
the  testator's  vault  in  repair;  upon  breach  of  the  condition  the 
fund  to  go  to  another  charity.  In  England  it  has  been  held 

1  202  111.  41,  49.  184;  Smart  ».  Durham,  77  N.  H. 

1  10  Allen,  355.  56. 

1  See  §  282,  ante.  5  72  Me.  155. 

4  And  see  In  re  Waldron,  109  •  51  Conn.  352.    See  also  Hunt 

N.  Y.  Suppl.  681.    2  Perry,  Trusts  v.  Wright,  47  N.  H.  396;  §  305  (5), 

(6th  ed.)  §  706.     But  see  Jones  v.  ante. 

Habereham,   107  U.   S.   174,   183,  7  [1891]    3    Ch.    D.    252.     See 

§§  603  c,  603  d,  post. 


298  THE   BULB  AGAINST   PERPETUITIES. 

that  a  gift  from  one  charity  to  another  on  a  remote  contingency 
is  not  within  the  Rule  against  Perpetuities,  and  consequently 
the  Court  of  Appeals  (affirming  the  decision  of  Stirling,  J.) 
held  that  the  condition  in  this  case  was  good.  As  Lindley, 
L.  J.,  said,  "There  is  nothing  illegal  in  keeping  up  a  tomb."  * 
So  in  those  jurisdictions  in  America  in  which  conditions  are 
held  to  be  not  within  the  Rule  against  Perpetuities,  there  is  no 
reason  why  a  condition  to  keep  a  tomb  in  repair  should  not  be 
held  valid.  "There  is  nothing  illegal  in  keeping  up  a  tomb." 

§  312.  (4)  Possibilities  of  Reverter.  —  Possibilities  of  re» 
verter  after  determinable  fees  were  probably  put  an  end  to 
by  the  Statute  Quia  Emptores.*  Where  the  Statute  Quia  Emp- 
iores  is  not  in  force,  and  tenure  exists,  i.  e.  in  South  Carolina 
and,  perhaps,  Pennsylvania,3  such  interests  can  be  created 
unless  they  be  too  remote;  so  also  they  have  been  allowed  in 
some  other  States.4  It  would  seem  they  are  not  too  remote.5 
It  is  true  that  such  rights  are  not  like  rights  of  escheat,  which  in 
no  degree  affect  the  value  of  the  estates  which  are  subject  to 
them,  and  which  in  no  way  hamper  the  transfer  of  such  estates,* 
and  that  they  are  of  a  most  objectionable  character  as  restrain- 
ing the  free  commerce  in  land;  but  this  arises  from  the  funda- 
mental error  of  allowing  determinable  fees  at  all.  When  these 
are  once  allowed  to  exist,  remote  possibilities  of  reverter  be- 
come a  necessity.7 

§  313.  At  any  rate  the  possibility  of  reverter  as  it  exists 

1  And  see  Roche  v.  M'Dermott,  171,  has  said  that  rights  of  entry 

[1901]  1  I.  R.  394.  for  breach  of  condition  and  possi- 

1  See  §  31  et  seq.,  ante.  bilities  of  reverter  "should  be  gov- 

'  §§  26,  27,  ante.  erned  by  the  same  rule.    If  one  is 

4  See   §§  40,  41  a,    115  a,   ante,  not  held  void  for  remoteness,  the 

603  i,  post.  other  should  not  be,"  and  therefore 

6  So  held  in  Lougheed  v.  Dyke-  that  as  rights  of  entry  are  not  in 
man   Baptist   Church,   40   N.   Y.  America   deemed    subject    to   the 
Suppl.  586.  Rule  against  Perpetuities,  possibili- 

•  See  §§  204,  205,  ante.  ties  of  reverter  ought  not  to  be. 

7  The  Supreme  Judicial  Court  But   it   is   respectfully   submitted 
of  Massachusetts  in  First  Univer-  that  the  cases  rest  on  totally  dif- 
ealiat  Society  v.  Boland,  155  Mass.  ferent  grounds.    An  entry  for  con- 


INTERESTS   SUBJECT  TO   THE   RULE. 


299 


after  that  form  of  a  determinate  fee  known  as  a  conditional  fee, 
—  that  is,  an  estate  to  a  man  and  the  heirs  of  his  body,  as  it 
existed  at  common  law  before  the  Statute  De  Donis,  and  as 
it  still  exists  in  South  Carolina,1  —  can  never  be  too  remote; 
for  if  the  grantee  has  no  issue,  the  estate  terminates  with  his 
life;  and  if  he  has  issue  born  to  whom  the  estate  descends, 
the  estate  can  be  at  any  time  alienated,  and  the  possibility  of 
reverter  destroyed.2 

§  313  o.  (5)  Curtesy  and  Dower  share  the  fate  as  to  remote- 
ness, of  the  estates  to  which  they  are  incident. 

§  314.  (6)  Rights  less  than  ownership  in  land  of  others,  such 
as  profits,  easements,  rents,  could  be  granted  at  common  law 
de  novo  to  begin  in  futuro.3  These  rights  were  probably  sel- 
dom granted  to  begin  at  any  distant  date,  and  no  objection  on 


dit ion  broken  cuts  short  an  existing 
estate  which,  but  for  the  entry, 
would  continue.  It  has  precisely 
the  same  effect  as  a  conditional 
limitation,  and  the  error  in  the 
American  doctrine  is  to  make  a 
difference  in  the  matter  of  remote- 
ness, according  as  the  divesting 
condition  is  in  favor  of  a  third 
person,  or  is  in  favor  of  the  grantor, 
when  in  truth  there  is  no  rational 
distinction  in  the  cases.  But  the 
possibility  of  reverter  does  not 
cut  short  the  preceding  interest. 
If  there  be  an  error  in  the  Massa- 
chusetts decision  of  First  Univer- 
ealist  Society  v.  Boland,  as  it  is 
submitted  there  is,  it  is  not  in  fail- 
ing to  apply  the  Rule  to  possibili- 
ties of  reverter,  but  hi  recognizing 
determinable  fees,  which  render 
such  possibilities  necessary. 

A  different,  and,  it  is  thought,  a 
more  correct  view,  of  the  applica- 
tion of  the  Rule  against  Perpetui- 
ties to  possibilities  of  reverter  is 
taken  hi  this  edition  than  in  the 
first  one. 


The  possibility  of  reverter  which 
is  held  to  exist  in  Illinois,  and  per- 
haps in  some  other  States,  upon 
a  statutory  dedication  (see  §  42, 
ante),  has  never  been  objected  to  as 
too  remote.  Probably  if  the  ques- 
tion was  made,  the  statutory  char- 
acter of  the  interest  would  be 
considered  to  save  it.  Under  a 
common-law  dedication  the  fee 
continues  in  the  dedicator,  and  the 
abandonment  of  the  public  use  no 
more  raises  a  question  of  remote- 
ness, than  does  the  extinguishment 
of  an  easement.  The  Rule  of  Per- 
petuities is  concerned  with  the  be- 
ginning only  and  not  with  the 
termination  of  estates  and  inter- 
ests. See  §  279,  ante.  Cf.  §§  973, 
974,  post. 

1  §  44,  ante. 

1  See  Jones  v.  Postell,  Harp. 
92,  99,  100,  note.  On  executory 
devises  after  fees  nmple  condi- 
tional, see  §  14,  ante,  and  §  455, 
post. 

*  §  16,  ante. 


300  THE   RULE  AGAINST  PERPETUITIES. 

account  of  remoteness  seems  to  have  been  taken  to  them  in 
early  times,  any  more  than  to  contingent  remainders  or  to 
conditions.  It  is  not  improbable  that  a  common-law  grant  to 
a  person  not  in  esse  is  void,  and  that  therefore  no  such  grant 
could  be  made  except  to  a  living  person;1  but  a  grant  to  A. 
and  his  heirs  of  a  profit  to  begin  fifty  years  or  a  thousand  years 
from  the  date  of  the  deed  is  good,  unless  it  violates  the  Rule 
against  Perpetuities. 

§  315.  The  only  reasons  given  for  exempting  such  a  right 
so  granted  from  the  operation  of  the  Rule  against  Perpetuities 
are  that  a  grant  is  a  common-law  conveyance,  and  that  the 
right  is  releasable.  Neither  of  these  is  a  valid  reason.2  So 
remote  a  right  is  greatly  against  public  policy.  If  created  by 
will  it  would  be  an  executory  devise  void  for  remoteness;  and 
such  a  distinction  between  a  common-law  grant  and  a  devise 
is,  to  say  the  least,  undesirable. 

§  316.  In  Gilbertson  v.  Richards,3  it  was  held  that  a  rent 
to  begin  at  a  possibly  distant  day  was  good;  but  no  question 
was  raised  as  to  the  effect  of  a  common-law  grant,  for  the  rent 
in  that  case  was  created  by  way  of  use,  and  the  case  cannot 
now  be  considered  as  law.4  The  Real  Property  Commission- 
ers in  their  Third  Report 6  seem  to  have  considered  that  grants 
of  incorporeal  hereditaments  were  not  within  the  Rule  against 
Perpetuities,  although  they  ought  to  be.  But  the  leading  text- 
writers  all  agree  that  they  are  within  the  Rule.6  Rents  in- 

1  Perk.  Grant,  52.  ed.)  203-305.    Sanders  indeed,  loc. 

*  See     §§   296-298,    302,     312,      tit.,  refers  to  Hartopp  v.  Carbery, 
ante;  §§  319,  321,  323,  post.  in  the  King's   Bench   in  Ireland, 

1  4  H.  &  N.  277.  as  deciding  the  point;   but  in  that 

4  As  to  Gilbertson  v.  Richards,  case,   which   is  not   reported,   the 

see  §§  271-273  a,  ante,  and  London  rent  seems  from  his  statement  to 

&  S.  W.  R.  Co.  v.  Gomm,  20  Ch.  have   been    created    by  executory 

D.  562;  §  275,  ante.  devise.     In  Hope  v.  Gloucester,  7 

*  P.  36.  De  G.  M.  &  G.  647,  a  covenant  to 

*  Lewis,    Perp.   c.  29.     Gilbert,  grant  leases  at  remote  periods  was 
Rents,  59,  60.    Fearne,  C.  R.  529,  held    invalid    as    creating    a    per- 
Butler's  note.    Gilbert,  Uses  (Sugd.  petuity.     And  see  as  to  leaseholds 
ed.)  195,  note.     1  Sand.  Uses  (5th  in  futuro,  §319,  post. 


INTERESTS   SUBJECT  TO   THE  RULE. 


301 


deed,  although  incorporeal  hereditaments  in  the  contempla- 
tion of  the  common  law,  may  be  perhaps  fairly  considered  as 
obligations,  and  therefore  their  creation  as  not  within  the 
scope  of  the  Rule  against  Perpetuities;  the  only  right  in  any 
property  given  by  a  rent  is  a  right  to  distrain,  and  this 
is  matter  of  remedy  to  which  the  Rule  does  not  apply.1 
But  grants  of  profits  or  easements  in  futuro  seem  to  give  true 
rights  in  property,  and  should  therefore  be  subjected  to  the 
Rule.2 

§  316  a.  (7)  Escheat  has  no  effect  on  the  tying  up  of  prop- 
erty and  is  not  subject  to  the  Rule  against  Perpetuities.3 

§  317.  (8)  Shifting  and  springing  uses  and  executory  de- 
vises are  all,  without  question,  subject  to  the  Rule  against 
Perpetuities. 

§  318.  Copyholds.  —  There  appear  to  be  no  cases  concerning 
remoteness  in  limitations  of  copyholds.  But  so  far  as  future 


1  See  §  273  a,  ante;  §  329,  post.  . 

1  South  Eastern  R.  Co.  t;.  Asso- 
ciated Portland  Cement  Manuf., 
[1910]  1  Ch.  (C.  A.)  12,  27.  Per 
Farwell,  L.  J.,  "I  see  no  reason  to 
doubt  the  accuracy  of  that  passage 
{in  Lewis  on  Perpetuities,  pp.  619, 
620,  that  the  Rule  against  Per- 
petuities applies  to  easements]  in 
the  case  of  a  right  against  real 
estate."  So  Sharpe  v.  Durrant,  55 
Sol.  J.  423.  See  11  Enc.  Laws  of 
Eng.  (2d  ed.)  72,  73;  54  Sol.  J. 
471,  501,  502. 

In  Ardley  v.  Guardians  of  the 
Poor,  39  L.  J.  Ch.  871,  T.  demised 
land  for  ninety-five  years  to  R., 
reserving  to  T.  and  his  heirs  a  right 
of  way  over  the  east  side  of  the 
demised  premises  during  the  time 
they  should  hold  the  adjoining 
land,  with  liberty  to  erect  scaffold- 
ing thereon  for  repairing  and  build- 
ing, and  after  he  or  they  should 
dispose  of  the  adjoining  land,  then 


reserving  to  T.,  his  heirs  and  as- 
signs, a  right  of  ingress  and  egress 
unto  and  upon  the  said  eastern 
part  of  the  demised  premises  for 
the  purpose  of  rebuilding  or  re- 
pairing any  buildings  on  said  ad- 
joining land.  T.  disposed  of  the  ad- 
joining land.  LordRomilly,  M.  R., 
held  that  when  T.  alienated  the 
adjoining  land,  the  first  easement 
came  to  an  end,  and  the  sec- 
ond came  into  existence.  No  ob- 
jection to  the  second  easement 
on  the  ground  of  remoteness  was 
made,  but  it  seems  to  have  been 
invalid  on  that  score,  unless  it  can 
be  said  that  the  new  easement  was 
merely  a  retention  of  part  of  the 
old  easement.  Perhaps  in  view  of 
the  fact  that  the  first  easement 
was  reserved  to  T.  and  his  heirs, 
and  the  latter  to  T.,  his  heirs  and 
assigns,  this  position  might  be 
difficult  to  maintain. 

»  See  §§  204,  205,  note,  ante. 


302  THE  RULE   AGAINST  PERPETUITIES. 

limitations  of  copyholds  are  allowed,1  they  would  seem  to  be 
subject  to  the  same  rules  as  the  corresponding  limitations  of 
freehold.2 

B.    PERSONAL  PROPERTY. 

§  319.  Chattels  real  may  be  created,  and  chattels  real  and 
personal  transferred,  in  future.3  Unless  the  Rule  against 
Perpetuities  applies  to  them,  they  may  be  created  or  trans- 
ferred fifty  or  a  thousand  years  from  the  date  of  the  instru- 
ment creating  or  transferring  them.  The  same  considerations 
show  that  the  Rule  should  govern  them  as  show  that  it  should 
govern  incorporeal  hereditaments.4 

§  320.  Whether  future  interests  in  a  chattel  remaining  in 
the  grantor,  or  limited  over  to  a  third  person,  after  a  present 
gift  are  within  the  Rule  against  Perpetuities  or  not  depends 
upon  whether  they  are  to  be  deemed  vested  or  contingent.5 
All  such  interests,  if  contingent,  are  within  the  Rule.6 

1  See  §  70,  ante.  first    term,    the    latter    is  vested, 

*  Surrenders   to   future  uses,  if  though  the  reversion  is  not  granted 
allowed,    which   is    doubtful,    give  by  it.     It  is  ready  to  come  into 
common-law     interests;     but  it  is  possession  whenever  the  first  term 
highly  improbable  that  they  would  determines.     The  interesse  termini 
be  exempted  from  the  operation  of  is    treated    like    an    estate.     See 
the  Rule  against   Perpetuities  on  Bowen,  J.,  in  Gillard  v.  Cheshire 
this  ground.     §§  296-298,  300-302,  Lines  Committee,  32  W.  R.  943. 
312,  315,  316,   ante;   §§319,   321,  "When  that  demise  was  made  to 
323,  post.  the  plaintiff  he  had  vested  in  him 

1  §§  71,  72,  77,  ante.  an  interest  known  to  the  law  as 

4  §§  315,   316,    ante.     See  also  an  interesse  termini.    That  is  more 

§§  296,  [298,   300-302,  312,   ante;  than  a  right  of  entry;  it  is  an  in- 

§§321,  323,  post.  terest  which  the  law  recognizes  in 

*  This  matter  is    discussed    in  a  future  term  coupled  with  a  right 
Chap.  III.,  Vested  and  Contingent  to  complete  that  interest  by  pos- 
Interests,  §  117  et  seq.,  ante;  App.  session."    (2)  If  the  second  term  is 
F,  §§  789  et  seq.,  post.  granted   on   a   contingency   which 

(1)  If  a  term  for  100  years  is  is  too  remote,  then  the  second  term 

created,  and  then  at  the  same  time,  is  not   good.     (3)   If  there  is  no 

or  later,  another  term  is  granted  preceding  term,  and  the  period  at 

to  begin  on  the  termination  of  the  which  the  term  is  to  begin,  though 

•  On  covenants  to  renew  leases  see  §§  230  et  seq.,  ante. 


INTERESTS  SUBJECT  TO   THE  RULE.  303 

§  321.  As  there  are  no  true  contingent  remainders  of  per- 
sonalty, no  such  question  as  has  been  discussed  with  regard  to 
contingent  remainders  l  can  arise  on  limitations  of  personalty.2 

§  321  a.  As  the  exemption  in  America  from  the  Rule 
against  Perpetuities  of  conditions  attached  to  conveyances  of 
real  estate  is  arbitrary,3  it  is  impossible  to  say  whether  the  ex- 
emption will  be  extended  to  conditions  hi  conveyances  of 
personalty.  In  Palmer  v.  Union  Bank*  there  is  a  dictum  so 
extending  it. 

§  321  6.  Nothing,  as  has  been  remarked,  shows  more  con- 
clusively the  falsity  of  the  idea  that  the  Rule  against  Perpetu- 
ities governs  only  interests  arising  under  the  Statutes  of  Uses 
and  Wills,  and  does  not  touch  common-law  interests,  than  its 
application  to  executory  limitations  of  chattels.  Such  limita- 
tions can  be  made  hi  England  by  will,  and  in  America  they 
oan  be  made  by  either  deed  or  will.  They  do  not  owe  their 
existence  to  the  Statute  of  Uses,  for  that  Statute  concerns 
•only  freeholds;  nor  to  the  Statute  of  Wills,  for  chattels  could 
be  disposed  of  by  will  before  that  Statute.  They  are  purely 
common-law  interests.  Yet  no  one  questions  that  they  are 
subject  to  the  Rule.  Indeed,  the  Rule  had  its  origin  and  de- 
velopment in  cases  concerning  executory  devises  of  leaseholds.5 

Certain,   is  too   remote,  it   is  not  11  Enc.  Laws  of  Eng.  72, 73;  50SoL 

good.      In    Redington   v.    Brown,  J.   760;   22   "Laws  of  England," 

32  L.  R.  Ir.  347,  (1)  is  said  to  be  §  659.     §§  117,  210,  ante. 

clearly   law,    and    (2)    is   decided.  l  §§  284-298,  ante. 

Smith  v.  Day,   2   M.  &  W.  684;  *  In  re  Bowles,  [1902]  2  Ch.  650. 

Murphy  v.  Hurlstone,  185;  6  L.  J.  And  see  §  325,  post. 

N.  B.   Exch.   219;    and   Knight  v.  »  §§  304-310,  ante. 

City  of  London  Brewery  Co.,  [1912]  «  §  17  R.  I.  627.  See  §  310  a  (4), 

1  K.  B.  10,  come  within  (1)  even  ante. 

if  the  question  of  remoteness,  which  6  §§  148-158,  160-169,  296-298, 

was  not   suggested  in  either   case  300-302,  312,  315,  316,  319,  ante; 

lay  court  or  counsel,  was  material,  §  323,  post. 

which  it  would  seem  not  to  have  On  the  doctrine  of  conversion  as 

been.     (3)  Seems  correct;  see  §  201  affecting  questions  of  remoteness, 

ante;  but  see  30  Law  Quart.  Rev.  see  the  case  of  Rous  v.  Jackson, 

66.     Cf.   1  Jarm.  Wills  (6th  ed.)  App.  I,  §§  909  et  seq.,  post. 

307;  Wms.  Vend.  &  P.  (2d  ed.)  372; 


THE   RULE  AGAINST  PERPETUITIES. 


II.  EQUITABLE  INTERESTS. 

§  322.  Vested  equitable  interests,  either  of  realty  or  per- 
sonalty, are  not  subject  to  the  Rule  against  Perpetuities.1 

§  323.  All  future  equitable  interests,  not  vested,  are  subject 
to  the  Rule  against  Perpetuities.  This  is  not  questioned,  and 
it  furnishes  another  proof  that  the  Rule  is  not  confined  in  its 
scope  to  interests  arising  under  the  Statutes  of  Uses  and  Wills, 
for  equitable  interests  created  both  inter  vivos  and  by  will 
existed  before  those  Statutes.2 

§  324.  As  no  equitable  future  interest  requires  a  previous 
estate  to  support  it,  there  is  no  such  distinction  as  exists  at 
common  law  between  contingent  remainders  and  executory 
limitations.  There  are  strictly  no  equitable  remainders,  and 
there  can  be  no  question  in  equity,  such  as  there  may  be  at 
law,  whether  contingent  remainders  are  within  the  Rule  against 
Perpetuities  or  not.3 

§  325.  A  curious  result  of  the  fact  that  there  are  no  re- 
mainders in  equity  is  that  a  limitation  may  be  too  remote  in 
equity  which  would  be  good  at  law.  Thus,  suppose  an  estate 
is  devised  to  A.  for  life,  and  on  his  death  to  such  of  his  chil- 
dren as  reach  twenty-five.  The  limitation  to  A.'s  children  is 
a  contingent  remainder,  and  is  not  too  remote.  It  is  true 
that  A.'s  children  may  not  reach  twenty-five  until  more  than 
twenty-one  years  after  his  death;  but  unless  they  have  reached 
twenty-five  at  A.'s  death  they  will  never  take  at  all,  apart  from 
any  question  of  remoteness.  The  remainder,  if  it  ever  vests, 
must  vest  at  A.'s  death,  and  can  therefore  never  be  too  remote. 
Suppose,  on  the  other  hand,  that  land  is  given  to  trustees  in 
trust  to  pay  the  rents  to  A.  during  his  life,  and  on  his  death  to 
convey  the  land  to  such  of  A.'s  children  as  reach  twenty-five. 
This  limitation  to  the  children,  being  equitable,  is  not  a  re- 
mainder, and  is  too  remote.  For  A.'s  children  may  not  reach 

*  Rhodee's  Estate,  147  Pa.  227.  '  See    §§  284-298,    anie.      Cf. 

»  Cf.  §§  296-298,  300-302,  312,  20  Law  Quart.  Rev.  285;  21  Law 
315,  316,  319,  321,  ante.  Quart.  Rev.  126,  265. 


INTERESTS  SUBJECT  TO   THE   RULE. 


305 


twenty-five  until  more  than  twenty-one  years  after  his  death; 
and,  apart  from  the  question  of  remoteness,  they  can  take 
whenever  they  reach  that  age,  although  A.  may  have  died  more 
than  twenty-one  years  before.1 

§  325  a.  The  doctrine  laid  down  in  Whitby  v.  Mitchell,2 
that  a  remainder  to  the  children  of  an  unborn  person,  after  a 
life  estate  to  such  person,  is  void,  apart  from  the  Rule  against 
Perpetuities  has  been  extended  to  an  equitable  limitation,  which 
if  it  were  legal,  would  be  a  contingent  remainder.  In  re  Nash.3 
This  seems  the  logical  result  of  Whifby  v.  Mitchell.  Equitable 
limitations  should  follow  legal  limitations,  unless,  as  in  the  in- 
stance in  the  preceding  section,  the  doctrine  of  seisin  is  con- 
cerned in  the  result.4 

§  326.  Future  equitable  interests  in  chattels  which,  if  legal 
limitations  of  realty,  would  be  contingent  remainders  are,  of 


1  Abbiss  v.  Burney,  17  Ch.  D. 
211,  by  the  Court  of  Appeal,  over- 
ruling Malins,  V.  C.  (whose  de- 
cision had  been  much  criticised, 
69  L.  T.  335;  70  L.  T.  146;  24  Sol. 
J.  816;  25  Sol.  J.  717).  See  Bla- 
grove  v.  Hancock,  16  Sim.  371; 
Bull  v.  Pritchard,  5  Hare,  567; 
Lewis,  Perp.  424,  425;  3  Dav.  Prec. 
Conv.  (3d  ed.)  338-340.  In  Abbiss 
v.  Burney,  two  of  the  judges  of  the 
Court  of  Appeal,  it  is  true,  thought 
there  was  no  particular  equitable 
estate  preceding  the  estate  over, 
which  was  held  too  remote;  but 
they  all  agreed  that  had  there  been, 
the  (so-called)  equitable  remainder 
would  have  been  too  remote.  See 
Marsden,  Perp.  167  et  seq. 

Vice-Chancellor  Malins  rested 
his  decision  largely  upon  Lord 
Hardwicke's  opinion  in  Hopkins  v. 
Hopkins,  West,  606.  Lord  Hard- 
wicke,  indeed,  in  that  case  discussed 
the  question  whether  a  future  equi- 
table interest  was  a  contingent  re- 


mainder or  an  executory  devise, 
and  held  it  to  be  a  contingent  re- 
mainder; but  he  then  went  on  to 
say  that  an  equitable  contingent 
remainder  wanted  the  essential 
characteristic  of  a  legal  contingent 
remainder,  viz.  the  need  of  a  free- 
hold to  support  it.  Now  it  is  this 
very  characteristic  which  requires 
a  legal  remainder  to  vest,  if  at  all, 
at  the  termination  of  a  life  estate. 
Lord  Hardwicke's  judgment  there- 
fore amounts  to  this:  that  the  limi- 
tation in  question,  if  legal,  would  be 
a  contingent  remainder,  but  that  in 
equitable  estates  there  is  no  differ- 
ence between  contingent  remainders 
and  executory  devises.  But  see 
Marsden,  Perp.  169,  note. 

1  44  Ch.  D.  85.  See  §§  298  a, 
et  seq.,  ante. 

»  [1909]  2  Ch.  450;  [1910]  1  Ch. 
(C.  A.)  1. 

4  See  1  Jarm.  Wills  (6th  ed.) 
286. 


306  THE  RULE  AGAINST  PERPETUITIES. 

course,  executory  interests,  require  no  preceding  interest  to  sup- 
port them,  and  are  subject  to  the  Rule  against  Perpetuities.1 
Even  Vice-Chancellor  Malins,  in  attempting  to  lay  down  a 
different  doctrine  as  to  (so-called)  equitable  contingent  re- 
mainders in  realty,  does  not  pretend  that  any  limitations  of 
personalty  can  have  the  peculiar  characteristics  of  legal  con- 
tingent remainders.2 

§  327.  As  possibilities  of  reverter  are  purely  legal  interests, 
the  question  above  discussed  3  as  to  the  exemption  of  such 
rights  from  the  Rule  against  Perpetuities  cannot  arise  in  con- 
sidering equitable  interests.  But  equitable  interests  analogous 
to  possibilities  of  reverter  may  exist  in  connection  with  certain 
charitable  trusts. 

§  327  a.  Trusts  may  result  either:  (1)  Because  the  express 
trusts  created  do  not  exhaust  the  equitable  fee,  as  when  only 
equitable  life  estates  or  equitable  estates  tail  are  created. 
Here  the  resulting  trust  is  a  vested  interest,  like  a  reversion. 
It  is  ready  to  take  effect  whenever  and  however  the  preceding 
estates  determine.  (2)  Because  the  cestui  que  trust  dies  with- 
out heirs.  If  there  is  a  resulting  trust  in  such  a  case,4  such 
resulting  trust  is  an  interest  in  the  nature  of  an  escheat  and 
not  within  the  Rule.  (3)  Because  property  has  been  given 
for  a  charitable  purpose  and  that  purpose  has  been  accom- 
plished. Equitable  determinable  fees  ought  not  to  have  been 
allowed  any  more  than  legal  determinable  fees.  We  shall 
see,6  however,  that  determinable  charitable  trusts  have  been 
allowed.  Wherever  such  a  trust  is  allowed,  there  must  be 
ex  necessitate  rei,  a  valid  resulting  trust,  and  therefore  a  trust 
which  is  not  avoided  by  the  Rule  against  Perpetuities. 

§  328.  In  the  case  of  a  charitable  trust  there  is  generally 
no  defined  cestui  que  trust,  but  this  undefined  interest  is  subject 

1  Bull  v.  Pritchard,  1  Riuw.  213.          »  §§  312,  313,  ante. 
Wms.  Pere.   Prop.  (17th  ed.)  404,  *  As  to  whether  there  is  a  re- 

405.  suiting  trust  in  such  a  case,  see 

1  Abbiss  v.  Burney,  17  Ch.  D.  §  205,  note,  ante. 
211,  221,  223.  *  See  §  603  i,  post. 


INTERESTS  SUBJECT  TO  THE  RULE. 


307 


to  the  Rule  against  Perpetuities,  and  cannot  begin  at  too  re- 
mote a  period.1  But  although  a  charitable  trust  is  to  begin 
at  a  remote  period,  yet  if  it  is  preceded  by  another  charitable 
trust,  it  has  been  held  not  to  be  void,  even  if  there  be  a  change 
of  the  trustee.  This  is  considered  in  the  chapter  on  Charitable 
Trusts.2 

III.  CONTRACTS. 

§  329.  The  Rule  against  Perpetuities  concerns  rights  of 
property  only,  and  does  not  affect  the  making  of  contracts 
which  do  not  create  rights  of  property.  Thus  a  promise  to  A.  to 
pay  him  or  his  executors  or  administrators  a  sum  of  money  on 
a  future  event  is  good,  although  such  event  may  not  happen 
within  twenty-one  years  after  lives  in  being; 3  and  this  is  not 
altered  by  the  fact  that  the  covenant  runs  with  the  land  (as, 
for  instance,  a  covenant  of  warranty),  or  can,  in  any  way,  be 
enforced  by  or  against  other  persons  than  the  original  parties 


1  §§  595,  596,  post. 

1  §§  597-603,  post. 

1  See  Walsh  v.  Secretary  of 
State  for  India,  10  H.  L.  C.  367; 
Witham  v.  Vane,  in  Dom.  Proc., 
Challis,  Real  Prop.  (3d  ed.)  440, 
451,  452;  Marsden,  Perp.  25,  26; 
Challis,  Real  Prop.  (3d  ed.)  184. 
See  §  693,  post.  Although  the  Rule 
does  not  affect  the  creation  of  such 
a  contract,  it  does  apply  to  a 
transfer  of  the  contract  when 
created.  Thus  if  the  promisee  in 
such  a  contract  should  bequeath  it 
to  A.  on  a  remote  contingency,  the 
bequest  would  be  void.  The  crea- 
tion of  an  obligation  is  no  part  of 
the  law  of  property;  but  the  trans- 
fer of  such  obligation  when  created 
is  as  much  part  of  the  law  of  prop- 
erty as  the  transfer  of  a  house  or  of 
a  table.  The  attempt  of  North, 
J.,  to  support  his  decision  in  In  re 
Randell,  38  Ch.  D.  213,  on  Walsh 
v.  Secretary  of  State  for  India  is 


not  happy.  In  the  last-mentioned 
case  there  was  no  trust  fund.  In 
the  former  there  was.  In  Borland's 
Trustee  v.  Steel  Brothers  &  Co., 
[1901]  1  Ch.  279,  a  company's  ar- 
ticles of  association  provided  that 
a  shareholder  should,  upon  demand, 
transfer  his  shares  upon  certain 
terms  and  to  certain  persons.  Far- 
well,  J.,  held  that  this  proviso  was 
not  too  remote  because  it  was  a  per- 
sonal contract.  Sed  qucere.  The 
right  of  the  shareholder  had  its 
origin,  it  is  true,  in  a  personal  con- 
tract, but  when  once  created  the 
transfer  of  that  contract  right 
would  seem  to  be  subject  to  the 
Rule  against  Perpetuities.  If,  as 
is  often  the  case  with  such  articles, 
the  shares  have  to  be  surrendered 
on  the  death  of  the  shareholder, 
he  has  only  a  life  interest,  and  such 
proviso  will  not  be  too  remote. 
Cf.  A.  G.  v.  Jameson,  [1904]  2  I.  R. 
644;  [1905]  2  I.  R.  218. 


THE   RULE   AGAINST  PERPETUITIES. 

and  their  representatives,1  nor  that  the  obligation  has  a  right 
of  distraint  attached  to  it,  for  that  is  only  matter  of  remedy, 
and  not  a  future  limitation  of  any  particular  property.2 

§  330.  Where,  however,  a  contract  raises  an  equitable  right 
in  property  which  the  obligee  can  enforce  hi  chancery  by  a 
decree  for  specific  performance,  such  equitable  right  is  subject 
to  the  Rule  against  Perpetuities.  This  was  decided  by  the 
Court  of  Appeal  in  London  &  South  Western  R.  Co.  v.  Gomm,3 
where  an  option  to  purchase  land,  unlimited  as  to  time,  was 
held  void;  overruling  Birmingham  Canal  Co.  v.  Cartwright.4 

§  330  a.  But  though  an  equitable  right  in  property  under  such 
a  contract  is  subject  to  the  Rule  against  Perpetuities,  that  Rule 
is  no  bar  to  an  action  at  law  on  the  contract  for  damages.5 

§  330  6.  In  SoiUh  Eastern  R.  Co.  v.  Associated  Portland 
Cement  Manuf.,*  a  railroad  company,  being  about  to  pur- 
chase a  strip  through  C.'s  land,  agreed  with  C.,  in  a  writing 
not  under  seal,  that  C.,  his  heirs  and  assigns,  might  at  any 
time  make  a  tunnel  under  the  strip.  Subsequently  C.,  by  a 

1  See  Aspden  v.  Seddon,  1  Ex.  D.  On  the  application  of  the  Rule 
496;  Morgan  v,  Davey,  1  Cab.  &  to  covenants  of  renewal  in  leases, 
El.  114;  §  273  a,  ante.  But  the  fact  see  §  230  et  seq.,  ante. 
that  a  covenant  runs  with  the  land  On  the  question  whether  a  di- 
does not  necessarily  prevent  it  from  rection  to  pay  premiums  on  a 
conflicting  with  the  Rule  against  policy  of  life  insurance  violates  the 
Perpetuities,  if  it  creates  a  right  of  Thellusson  Act,  see  §  693,  post. 
property.  §  330.  See  remarks  of  6  Worthing  Corporation  v. 
Warrington,  J.,  in  Woodall  v.  Clif-  Heather,  [1906]  2  Ch.  532.  See 
ton,  [1905]  2  Ch.  257,  264;  and  49  South  Eastern  R.  Co.  v.  Associated 
Sol.  J.  740.  Portland  Cement  Manuf.,  [1910] 
1  See  §§  273  a,  316,  ante.  1  Ch.  12.  Mr.  T.  Cyprian  Williams 
8  20  Ch.  D.  562.  in  two  articles,  51  Sol.  J.  648,  669, 
4  11  Ch.  D.  421.  See  5  275,  contends  that,  though  the  contract 
ante,  and  cases  there  cited;  Marsden,  in  Worthing  Corporation  v.  Heather 
Perp.  14;  Challis,  Real  Prop.  (3d  did  not  come  within  the  Rule 
ed.)  183  et  seq. ;  and  on  the  applica-  against  Perpetuities,  it  should  have 
tion  of  the  Rule  against  Perpetui-  been  held  void  as  an  illegal  re- 
ties  to  trusts  for  the  payment  of  straint  on  alienation.  See  54  Sol. 
debts,  see  §§  415  et  seq.,  post;  and  J.  502. 
to  mortgages  and  sinking  funds,  '  [1910]  1  Ch.  12. 
Bee  Chap.  XVI.,  post. 


INTERESTS  SUBJECT  TO  THE  RULE.  309 

deed  poll,  conveyed  the  strip  to  the  railroad  company,  reserv- 
ing to  himself,  his  heirs  and  assigns,  the  right  to  make  the 
tunnel.  The  assignee  of  C.  started  to  make  the  tunnel,  and  the 
railroad  company  applied  for  an  injunction.  The  deed  from  C., 
being  a  deed  poll,  created  no  legal  easement  in  his  favor,1 
but  the  agreement  gave  him  an  equitable  right  to  an  easement. 
The  question  was  whether  this  was  a  present  right  or  a  future 
right.  Swinfen  Eady,  J.,  held  that  it  was  a  present  right,  and 
therefore  was  not  obnoxious  to  the  Rule  against  Perpetuities,2 
and  so  he  refused  the  injunction.  This,  it  is  submitted,  was 
correct.3 

§  330  c.  The  case  was  carried  to  the  Court  of  Appeals  (Coz- 
ens-Hardy,  M.  R.,  Fletcher,  Moulton,  and  Farwell,  L.JJ.).4 
The  Court  affirmed  the  decree  below  refusing  the  injunction, 
but  apparently  not  on  the  ground  taken  by  Swinfen  Eady,  J. 
They  said  that  the  agreement  between  C.  and  the  railroad 
company  was  a  contract  which  could  be  enforced  against  the 
railroad  company,  and  that  specific  performance  of  this  con- 
tract could  be  compelled.  Undoubtedly  the  contract  created 
an  obligation  on  the  part  of  the  company  which  could  be  en- 
forced by  a  suit  at  law,  because,  qua  contract,  it  was  not  sub- 
ject to  the  Rule  against  Perpetuities,  but  it  does  not  follow 

1  By  an  anomalous,  but  widely  R.  Co.  v.  Gomm,  20  Ch.  D.  562, 
spread  doctrine,  in  the  United  cited  as  an  authority  for  that  pur- 
States,  such  a  provision  is  held  to  pose."  [1910]  1  Ch.  28.  "I  do  not 
create  a  legal  easement.  think  that  in  my  whole  experience 

1  See  §  279,  ante.  I  have  ever  had  to  decide  upon  a 

3  But  see  54  Sol.  J.  471.  more  utterly  unmeritorious  claim." 

4  The  learned   judges   seem   to  (Ib.  31.)     "If  they  were  right  in 
have   decided    the    case    quasi   in  law,  the  fact  that  I  am  thoroughly 
furore.    "  I  have  listened  with  some  disgusted   with   the  railway   corn- 
amazement  to  the  contention  that  pany  for  putting  forward  such  a 
the    rule    of    perpetuities    applies  claim  would  not  affect  me  in  the 
where  the  action  is  brought,  not  slightest  .  .  .  but  the  law  on  which 
against   an   assignee  of  the  cove-  the  claim  is  founded  seems  to  be 
nantor,  but  against  the  covenantor  as  bad  as  the  morals."     (Ib.  32.) 
himself,  and  I  have  listened  with  "There  ia  certainly  no  honesty  in 
still  more  amazement  when  I  heard  the  company's  case."     (Ib.  34.) 
the  case  of  London  &  South  Western 


310  THE   RULE  AGAINST  PERPETUITIES. 

that  it  could  be  enforced  by  a  decree  for  specific  performance; 
for  to  have  a  right  to  specific  performance  of  a  contract  to 
convey  an  interest  in  land  is  to  have  a  right  of  property  in  the 
land  which  is  subject  to  the  Rule  against  Perpetuities.  With 
the  greatest  respect  for  the  eminent  judges,  it  does  seem  that, 
in  their  disgust  for  the  conduct  of  the  railroad  company,  they 
overlooked  this  distinction.1  South  Eastern  R.  Co.  v.  Asso- 
ciated Portland  Cement  Manuf.  was  followed  by  Warrington,  J., 
in  Sharpe  v.  Durrani? 

1  See  a  criticism  on  this  case  by         *  55  Sol.  J.  (1911)  423. 
Mr.  T.  Cyprian  Williams,  54  Sol. 
J.  471,  501. 


SEPARABLE   LIMITATIONS.  311 


CHAPTER  IX. 
SEPARABLE  LIMITATIONS. 

§  331.  VERY  often,  indeed  generally,  a  future  contingency 
which  is  too  remote  may  in  fact  happen  within  the  limits 
prescribed  by  the  Rule  against  Perpetuities,  and  a  gift  condi- 
tioned on  such  contingency  may  be  put  into  one  of  two  classes 
according  as  the  contingency  happens  or  does  not  happen 
within  those  limits;  but  unless  this  division  into  classes  is 
made  by  the  donor,  the  law  will  not  make  it  for  him,  and  the 
gift  will  be  bad  altogether.  Thus  if  land  is  devised  to  A. 
and  his  heirs,  with  a  gift  over  on  the  tenant  for  the  time  being 
changing  the  family  name,  such  gift  might  be  divided  into 
two:  one,  a  gift  if  A.  or  any  of  his  heirs  born  in  the  lifetime 
of  the  testator  should  change  the  name;  and  the  other  a  gift 
if  any  of  the  heirs  of  A.  not  born  in  the  lifetime  of  the  testa- 
tor should  change  the  name.  The  former  gift  would  be  good, 
the  latter  bad.  The  testator  might  have  separated  the  gifts, 
but  as  he  has  not,  A.'s  estate  is  indefeasible. 

§  332.  This  is  the  law  even  when  the  division  is  of  the 
most  obvious  character.  Thus  a  gift  to  B.  if  no  child  of  A. 
reaches  twenty-five  is  bad,  although  A.  dies  without  children; 
while  if  the  gift  over  had  been  if  A.  dies  without  children,  or 
if  his  children  all  die  under  twenty-five,  then  on  A.'s  death 
without  children,  the  gift  over  would  have  taken  effect. 

§  333.  A  leading  case  in  which  this  principle  was  strikingly 
enforced  is  Proctor  v.  Bishop  of  Bath  and  Wells l  (1794).  There 
was  in  that  case  a  devise  in  fee  to  the  first  or  other  son  of 
A.  that  should  be  bred  a  clergyman  and  be  in  holy  orders; 
but  in  case  A.  should  have  no  such  son,  then  to  B.  in  fee.  A. 

>  2  H.  Bl.  358. 


312  THE    RULE   AGAINST   PERPETUITIES. 

died  without  ever  having  had  any  son.  It  was  held  that  the 
gift  to  B.  was  void.1 

§  334.  Two  earlier  cases  are  not  to  be  reconciled  with 
this  doctrine,  Taylor  v.  Biddal*  and  Trafford  v.  Trafford.3 
No  objection  of  remoteness  was  raised  in  either  of  them,  and 
it  is  now  universally  admitted  that  they  were  wrongly  de- 
cided.4 In  Ibbetson  v.  Ibbetson 5  a  testator  devised  land  to 
A.  for  life,  remainder  to  A.'s  first  and  other  sons  successively 
in  tail  male,  with  remainders  over;  and  he  bequeathed  chattels 
to  trustees  in  trust  to  permit  the  same  to  be  used  and  en- 
joyed by  the  person  and  persons  who  for  the  time  being  should 
be  entitled  to  the  possession  of  said  land  by  virtue  of  the  lim- 
itations in  the  will,  until  a  tenant  in  tail  of  the  age  of  twenty- 
one  years  should  be  in  possession  of  said  land,  and  then  the 
chattels  were  to  go  and  belong  to  such  tenant  in  tail.  On  A.'s 
death  this  eldest  son  had  reached  twenty-one  years.  It  was 
held  by  Shadwell,  V.  C.,  and  affirmed  by  Lord  Cottenham, 
C.,  that  the  gift  of  the  chattels  to  the  first  tenant  in  tail  who 
reached  twenty-one  was  void  for  remoteness,  and  that  on  A.'s 
death  the  chattels  fell  into  the  testator's  residuary  estate.8 

§  335.  In  Smith  v.  Dungannon  7  a  testator  bequeathed  per- 
sonal property  to  trustees  in  trust  to  permit  A.  to  take  the 

1  Lewis,    Perp.    464-466,    506-  author,  in  his  remarks  on  Smith 
509.    Mareden,  Perp.  73.  See  Catt-  t».     Dungannon,     seems    to    have 
lin  v.  Brown,  11  Hare,  372,  376.  changed  his  opinion.    Lewis,  Perp. 

2  2    Mod.  289;    Freem.  K.  B.  Suppl.  159-161. 

243;  '§  172,  ante.  As  the  tenant  in  tail  had  reached 

8  3  Atk.  347.  twenty-one  at  the  death  of  A.,  the 

4  Lincoln  v.  Newcastle,  12  Ves.  gift  until  such  tenant  in  tail 

218, 231-233.    Dungannon «;.  Smith,  reached  twenty-one  did  not  take 

12  Cl.  &  F.  546,  565,  580,  592,  598,  effect;  and  there  was  no  occasion 

608,  616-619,  627,  631,  632.    Lewis,  to  consider  its  validity.    See  Chap. 

Perp.  652-654;  Suppl.  21,  22.    See  XL,  post. 

Rowland  v.  Morgan,  6  Hare,  463,  7  Fla.  &  K.  638;  5  IT.  Eq.  84; 

470.  1  Dr.  &  W.  543,  note;  sub  nom. 

*  10  Sim.  495;  5  Myl.  &  Cr.  26.  Dungannon  v.  Smith,  12  Cl.  &  F. 

*  This  case  was  commented  on,  546.    See  Ker  v.  Dungannon,  1  Dr. 
rather  adversely,   by   Mr.   Lewis,  &  W.  509;  1  Conn.  &  L.  335;  4  Ir. 
Perp.   649,   652;   but  the  learned  Eq.  343;  and  Sugd.  Law  Prop.  342- 


SEPARABLE   LIMITATIONS.  313 

profits  for  life,  and  on  his  death  to  permit  the  person  who  for 
the  time  being  would  take  by  descent  as  heir  male  of  the  body 
of  A.  to  take  the  profits  until  some  such  person  should  reach 
twenty-one,  and  then  to  convey  the  same  to  such  person. 
A.  died  leaving  a  son  over  twenty-one  years  of  age.  The 
question  came  first  before  Lord  Plunket,  Lord  Chancellor  of 
Ireland,  in  Ker  v.  Dungannon,  who  held  that  the  limitation 
to  the  heir  male  of  the  body  of  A.  who  should  reach  twenty- 
one  was  void  for  remoteness; l  but  he  recommended  a  rehear- 
ing before  his  successor,  Sir  E.  B.  Sugden,  who  decided  the 
case  on  another  ground,  but  expressed  a  strong  opinion  that 
the  limitation  was  too  remote. 

§  336.  The  case  of  Smith  v.  Dungannon,  which  raised  dis- 
tinctly the  question  of  remoteness,  was  then  brought  before 
Sir  Michael  O'Loghlen,  M.  R.,  who  decided  that  the  limita- 
tion was  void.  An  appeal  was  then  taken  to  Lord  Chancellor 
Sugden,  but  he,  owing  to  his  having  expressed  his  opinion  in 
Ker  v.  Dungannon,  suggested  that  an  appeal  should  be  taken 
at  once  to  the  House  of  Lords.  This  was  done.  The  judges 
were  summoned,  and  Tindal,  C.  J.,  Patteson,  Williams,  Cole- 
ridge, Coltman,  Maule,  Wightman,  and  Cresswell,  JJ.,  and 
Parke,  Alderson,  Rolfe,  and  Platt,  BB.,  attended,  and  all  but 
Coleridge,  J.,  delivered  opinions.  Nine  —  Tindal,  C.  J.,  Wil- 
liams, Coltman,  Maule,  Wightman,  and  Cresswell,  JJ.,  and 
Alderson,  Rolfe,  and  Platt,  BB.  —  thought  the  limitation  too 
remote.  Two  —  Patteson,  J.,  and  Parke,  B.  —  thought  it,  hi 
the  circumstances  which  had  happened,  good.  All  the  law 
lords  present  —  Lords  Lyndhurst,  C.,  Brougham,  Cottenham, 
and  Campbell  —  agreed  with  the  majority  of  the  judges  that  it 
was  bad  for  remoteness. 

§  337.  The  two  eminent  judges  who  thought  that  A.'s  son 
should  take  based  their  opinion  on  the  fact  of  the  gift  during 
minority.  They  thought  the  gift  during  minority  and  the 

349;  Lewis,  Perp.  Suppl.  159-161;  l  See    12   Cl.   &   F.   559,   note 

Mareden,  Perp.   113-115.     Cf.  In      (<f). 
re  Fane,  [1913]  1  Ch.  (C.  A.)  404. 


314  THE   RULE  AGAINST  PERPETUITIES. 

gift  on  reaching  twenty-one  should  be  taken  together  and 
made  a  gift  to  a  series,  the  first  of  whom  would  certainly 
take  within  the  limits  of  the  Rule  against  Perpetuities.  They 
conceded  that  if  the  gift  on  reaching  majority  had  stood  alone, 
without  the  gift  during  minority,  it  would  have  been  bad.1 

§  338.  To  the  rule  that  a  gift  cannot  be  divided  when  the 
settlor  or  testator  has  not  divided  it  there  is  an  exception. 
When  a  gift  over  would,  apart  from  the  Rule  against  Perpe- 
tuities, take  effect  under  certain  circumstances  as  a  remainder 
and  under  other  circumstances  as  an  executory  devise,  and  in 
case  it  took  effect  as  a  remainder  would  not  be  obnoxious  to  the 
Rule,  then,  if  in  fact  it  does  take  effect  as  a  remainder,  it  will  be 
good,  although,  had  it  taken  effect  as  an  executory  devise,  it 
might  have  done  so  at  too  remote  a  period.  This  exception 
was  established  by  the  case  of  Evers  v.  Challis?  In  that  case 
there  was  a  devise  of  land  to  A.  for  life,  and  on  her  death  to 
"  such  of  her  children  as  she  may  have,  if  a  son  or  sons,  who 
shall  live  to  the  age  of  twenty-three  years,  and,  if  a  daughter 
or  daughters,  who  shall  live  to  the  age  of  twenty-one  years;" 
and  in  case  of  the  death  of  A.  without  leaving  a  child,  if  a  son, 
who  should  attain  twenty-three,  or,  if  a  daughter,  who  should 
attain  twenty-one,  there  was  a  devise  over.  A.  died  without 
ever  having  had  any  children.  It  was  held 3  that  in  the  event 
which  had  happened,  apart  from  the  Rule  against  Perpetuities, 
the  devise  over  would  take  effect  as  a  remainder.  The  Court 
of  Queen's  Bench4  (Campbell,  C.  J.,  Coleridge,  Wightman, 
and  Erie,  JJ.)  held  that  the  gift  over  was  not  bad  for  remote- 
ness, as  it  had  taken  effect  as  a  remainder,  and  could  not 
have  taken  effect  as  a  remainder  except  at  the  death  of  A. 

1  12   (31.  &   F.  590,  601,  602.  Roberts,  19  Ch.  D.  520;  Smithwick 

Whether  the  gift  during  minority  v.  Hayden,  19  L.  R.  Ir.  490. 
was  good,  and  if  so,  to  what  extent,  *  18  Q.  B.  224,  231;  7  H.  L.  C. 

see  Chap.  XL,  post.  531. 

In  addition  to  the  above  cases  *  Following  Gulliver  v.  Wickett, 

see,  as  bearing  on  the  separableness  1  Wils.  505. 

of    limitations,    Commissioners    v.  *  Sub    nom.    Doe   d.    Evers    v. 

De  Clifford,  1  Dr.  &  W.  245;  Re  Challis,  18  Q.  B.  224. 


SEPARABLE  LIMITATIONS.  315 

The  Court  of  Exchequer  Chamber1  (Maule,  Williams,  and 
Talfourd,  JJ.,  and  Platt,  B.)  reversed  the  judgment  of  the 
Court  of  Queen's  Bench;  but  the  House  of  Lords2  (Lords 
Cranworth,  Wensleydale,  Chelmsford,  and  Brougham),  in  ac- 
cordance with  the  unanimous  opinion  of  the  judges  summoned 
(Wightman,  Williams,  and  Crompton,  JJ.,  Martin,  Bramwell, 
and  Watson,  BB.),  reversed  the  judgment  of  the  Exchequer 
Chamber,  and  affirmed  the  judgment  of  the  Queen's  Bench.3 

§  339.  Evers  v.  Challis  is  sometimes  cited  as  authority  for 
the  position  that  when  a  gift  over  is  to  take  effect  not  only  on 
children  failing  to  reach  a  remote  date,  but  also  on  such  chil- 
dren never  being  born,  the  latter  will  be  good  though  the  for-» 
mer  will  not,  although  both  are  included  in  one  expression.  But 
this  is  incorrect.  Such  an  idea  is  inconsistent  with  Proctor  v. 
Bishop  of  Bath  and  Wells.*  The  reason  for  allowing  the  sepa- 
ration of  contingencies  to  be  made  in  Evers  v.  Challis  was  that 
in  one  event  the  gift  would  take  effect  as  a  remainder,  and  in 
the  other  as  an  executory  devise.  Where,  hi  either  aspect,  the 
gift  is  an  executory  devise  or  bequest,  Evers  v.  Challis  does  not 
apply.  If,  therefore,  hi  that  case  the  property  in  question  had 
been  personalty,  or  an  equitable  interest  in  realty,  or  if,  as  in 
Proctor  v.  Bishop  of  Bath  and  Wells,  there  had  been  no  preced- 
ing estate  at  all,  so  that  the  gift  over  could  not  be  a  remainder, 
then  such  gift  would  have  been  wholly  bad,  although  no  chil- 
dren had  ever  been  born.  "Our  opinion  does  not  at  all  conflict 

1  18  Q.  B.  231.  nothing  more,  without  regard  to 

1  7  H.  L.  C.  531.  any  question  of  remoteness?    May 

1  A  long  line  of  cases  from  Pure-  it  be  that  the  doctrine  of  Purefoy 

foy  v.  Rogers,  2  Wms.  Saund.  380,  v.  Rogers  does  not  cover  the  case 

to  White  v.  Summers,  [1908]  2  Ch.  where  the  extension  to  the  contin- 

256,   has  established  the  doctrine  gency    raising    a    contingent    re- 

that  an  estate  which  can  take  effect  mainder,  is  by   implication   only? 

as  a  contingent  remainder  cannot  See  Leake,  Land  Law,  370;  Theob. 

take  effect  as  an  executory  devise.  Wills  (7th  ed.)  651;   and  the  am- 

See  App.  J,  §  918,  post.    Why,  in  biguous  remarks  of  Lord  Davey  in 

accordance  with  this  doctrine,  was  Hancock  v.  Watson,  [1902]  A.  C. 

not  the  limitation  over  in  Evers  v.  14,  21. 

Challis  a  contingent  remainder  and  *  2  H.  Bl.  358;  §  333,  ante. 


316  THE   RULE   AGAINST  PERPETUITIES. 

with  the  authority  of  the  cases  of  Proctor  v.  Bishop  of  Bath  and 
Wells  and  Jee  v.  Audley,  in  neither  of  which  cases  was  it  pos- 
sible for  the  limitation  over  to  operate  as  a  remainder."  1  "In 
that  case  [Proctor  v.  Bishop  of  Bath  and  Wells]  there  was  no 
particular  estate  to  support  the  contingent  remainder,  and  it 
was  clearly  an  executory  devise."  2 

§  340.  Accordingly  in  Thatcher's  Trusts,3  where  the  produce 
of  the  testator's  real  and  personal  estate  was  given  to  A.  for  life, 
and  after  her  death  in  trust  for  such  of  her  children  as  should 
reach  twenty-five  or  die  under  that  age  leaving  issue  then  liv- 
ing, and  in  case  any  child  of  A.  should  die  under  twenty-five 
without  leaving  any  issue  then  living,  then  to  be  divided 
among  A.'s  other  children,  and  in  case  no  child  of  A.  should 
reach  twenty-five  or  die  under  that  age  leaving  issue,  then  in 
trust  for  B.,  and  A.  was  never  married,  it  was  held  that  the 
gift  to  B.  was  too  remote.  The  editors  of  Jarman's  fifth 
edition 4  thought  this  inconsistent  with  Evers  v.  Challis;  but 
the  distinction  is  that  in  Evers  v.  Challis  there  was  a  legal 
remainder  —  in  Thatcher's  Trusts  there  were  only  equitable 
interests  in  personalty. 

§  340  a.  In  Watson  v.  Young5  there  was  a  devise  of  land  to 
trustees  in  trust  for  A.  for  life,  and  after  his  death  in  trust  for 
his  children  who  should  reach  twenty-one,  and  the  issue  of 
any  child  dying  under  twenty-one  who  should  reach  twenty- 
one;  "but  in  case  there  should  be  no  child,  nor  the  issue  of 
any  child,"  of  A.  who  should  live  to  reach  twenty-one,  then  in 
trust  for  B.  A.  had  no  children.  Pearson,  J.,  held  that  the 
gift  to  B.  was  separable  into  two  distinct  alternate  gifts: 
(1)  In  case  A.  had  no  child,  and  (2)  in  case  there  should  be 
no  child  or  issue  of  a  child  of  A.  who  should  reach  twenty-one; 
and  that  the  gift  on  the  first  contingency,  which  had  in  fact  oc- 

1  Per  Wightman,  J.,  7  H.  L.  C.          »  26  Beav.  365. 
647.  4  1   Jarm.  Wills   (5th  ed.)  258, 

1  Per  Lord  Brougham,  7  H.  L.  note  (n),  and  see  Id.  (6th  ed.)  358. 
C.  556.    See  1  Jarm.  Wills  (5th  ed.)          »  28  Ch.  D.  436. 
257,  258;  Mareden,  Perp.  73,  74. 


SEPARABLE   LIMITATIONS.  317 

curred,  was  good.  The  learned  judge  took  no  notice  of  Proctor 
v.  Bishop  of  Bath  and  Wells,  but  founded  his  decision  solely  on 
Evers  v.  Challis.  He  said:  "It  was  urged  that  the  decision  in 
Evers  v.  Challis  depended  on  the  fact  that  it  related  to  a  con- 
tingent remainder.  I  cannot  see  that  it  did.  For  the  purpose 
of  considering  whether  the  clause  contained  terms  which  were 
divisible,  it  was  wholly  immaterial  whether  there  was  a  con- 
tingent remainder  or  not."  But  in  face  of  the  language  of  the 
eminent  persons  in  Evers  v.  Challis  above  cited,1  it  is  clear 
that  Pearson,  J.,  misunderstood  that  case,  and  that  the  decision 
in  Watson  v.  Young  was  wrong.2 

§  340  6.  And,  accordingly,  in  In  re  Bence,3  Watson  v.  Young 
was  overruled,  and  the  case  of  Evers  v.  Challis  placed,  by  the 
Court  of  Appeal,  on  the  distinction  between  a  contingent  re- 
mainder and  an  executory  devise.  "The  case  is  no  authority 
for  the  proposition  that  every  gift  over  may  be  analyzed  into  as 
many  events  as  are  included  within  its  language,  and  be  held 
good  or  bad  as  the  events  may  happen."  4 

§  340  c.  And  so  in  In  re  Hancock  5  the  Court  of  Appeal, 
affirming  the  order  of  Byrne,  J.,  asserted  in  the  most  explicit 
manner  that  Evers  v.  Challis  rested  upon  the  distinction 
between  a  contingent  remainder  and  an  executory  devise, 
and  had  no  application  to  a  bequest  of  personalty  in  trust; 
and  on  appeal  to  the  House  of  Lords,  sub  nom.  Hancock  v. 
Watson,  the  order  was  affirmed  on  the  same  ground.6 

§  341.  When  the  settlor  or  testator  has  himself  separated 
the  contingencies,  there  is  no  difficulty  in  regarding  the  gifts 
separately,  and  upholding  one,  although  the  other  fails.  And 
the  courts  naturally,  and  properly,  lean  to  construing  the  gifts 
separately,  when  it  can  be  done.7  The  cases  are  given  in  the 
following  sections. 

1  §  339,  ante.  *  [1901]  1  Ch.  (C.  A.)  482. 

1  See  Stephens  v.  Evans,  30  Ind.  •  [1902]  A.  C.,  14.  See  1  Jarm. 

39.  Wills  (6th  ed.)  358-361. 

»  [1891]  3  Ch.  (C.  A.)  242.  7  Lewis,  Perp.   c.  21,   pp.  501- 

4  Per  Fry,  L.  J.  [1891]  3  Ch.  510.  1  Jarm.  Wills  (6th  ed)  354. 

(C.  A.)  251.  Marsden,  Perp.  75-78,  81. 


318  THE   RULE   AGAINST  PERPETUITIES. 

§  342.  Longhead  v.  Phelps.1  In  a  marriage  settlement,  after 
estates  for  the  lives  of  the  husband  and  wife,  a  term  of  a  thou- 
sand years  was  given  to  trustees  in  trust  if  the  husband  should 
die  without  leaving  issue  male  by  the  marriage,  or  if  all  the 
issue  male  of  the  marriage  should  die  without  issue,  then  after 
the  death  of  the  survivor  of  the  husband  and  wife  without 
issue  male,  or  in  case  at  the  death  of  the  survivor  there  should 
be  issue  male,  then  after  the  death  of  such  issue  male  with- 
out issue,  to  raise  certain  sums.  At  the  death  of  the  survivor 
there  was  no  issue  male.  It  was  contended  that  the  trust 
was  too  remote.  But  the  Court  held  that  under  the  circum- 
stances it  was  good.2 

§  343.  Leake  v.  Robinson.3  Real  and  personal  property 
were  devised  to  trustees  in  trust  for  A.  for  life,  then  for  such 
of  A.'s  children  as  should  reach  twenty-five,  then  over;  but  in 
case  A.  should  die  without  leaving  issue  living  at  the  time  of 
his  death,  or,  leaving  such,  all  should  die  before  twenty-five, 
then  over.  It  was  held  that  if  A.  left  children  the  gift  over 
would  be  void,  but  that  if  he  had  no  issue  living  at  his  death 
the  gift  would  be  good. 

§  344.  Monypenny  v.  Dering.4  Land  was  devised  to  trus- 
tees in  trust  for  P.  for  his  life;  on  his  death  for  his  son  for 
life;  on  such  son's  death  for  the  first  son  of  such  son  in  tail 
male;  in  default  of  such  issue  in  trust  for  all  the  other  sons 
of  P.  successively  for  the  like  interests  as  were  limited  to  the 
first  son  and  his  issue,  and  in  default  of  issue  of  P.,  or  in  case 
of  his  not  leaving  any  at  his  death,  then  over  to  T.  It  was 
held  that  P.'s  sons  did  not  take  estates  tail  by  cy  pres,  and 
consequently  that  the  gift  over  in  default  of  the  issue  of  P. 
was  too  remote,  and  the  question  was  whether  the  gift  over 
in  case  P.  had  no  issue  living  at  his  death  (which  in  fact  hap- 

»  2  W.  Bl.  704.  in  1  Jarm.  Wills  (6th  ed.)  364,  note, 

1  See  also  Crompe  v.  Barrow,  4      to  be  incorrect. 
Ves.  681,  Mr.  Lewis's  criticism  on          »  2  Mer.  363,  394. 
which,  Perp.  505,  note  (u),  is  shown,  *  16  M.  &  W.  418;  7  Hare,  568; 

2  De  G.  M.  &  G.  145. 


SEPARABLE   LIMITATIONS.  319 

pened)  was  separate,  so  that  it  could  stand,  although  the 
gift  on  default  of  issue  generally  was  too  remote.  The  case 
came  first  before  Vice-Chancellor  Wigram,  who  sent  a  case 
for  the  opinion  of  the  Court  of  Exchequer.  They  decided 
that  the  whole  gift  was  void  for  remoteness; l  but  the  ques- 
tion of  the  separableness  of  the  contingencies  was  not  argued 
before  them  on  behalf  of  T.2  The  Vice-Chancellor  then  sent 
the  case  to  the  Court  of  Common  Pleas,  who  were  of  opinion 
that  the  contingencies  were  separable,  and  that  on  the  contin- 
gency which  had  happened  the  gift  to  T.  was  good.3  The 
Vice-Chancellor  made  a  decree  in  favor  of  T. ; 4  and  Lord  St. 
Leonards,  C.,  on  appeal,  affirmed  the  decree,  holding  that  the 
contingencies  were  separable.5 

§  345.  Goring  v.  Howard.6  Personal  property  was  given 
to  trustees  in  trust  for  G.  for  life,  and  after  his  death  to  his 
children  on  their  reaching  twenty-five,  and  in  case  G.  should 
die  without  issue  living  at  his  death,  then  over.  The  gift 
over  on  G.'s  dying  without  issue  at  his  death  was  held  good. 

§  346.  Attenborough  v.  Attenborough.''  This  case  is  discussed 
under  Powers.8 

§  347.  Harding  v.  Nott.g  A  term  for  years  was  devised  to 
R.  and  his  executors,  but  if  R.  or  his  issue  male  should  be- 
come possessed  of  certain  other  land,  then  there  was  a  gift 
over.  R.  died  and  devised  the  term  to  his  son  S.,  who  became 
possessed  of  the  other  land.  Held,  that  the  gift  over  was 

1  16  M.  &  W.  436,  437.  mainder.    But  upon  the  real  facts 

2  See  7  Hare,  584,  598.  as  they  existed,   and  were  acted 
*  See  7  Hare,  582-584.    In  the      upon   in   Chancery,    the   interests 

cases  sent  to  the  courts  of  com-  were  equitable,  and  were  therefore 
mon  law  legal  estates  were  assumed  all  executory  devises  and  not 
to  be  in  question,  and  therefore,  ac-  strictly  remainders. 


cording  to  Evers  v.  Challis,  the  de- 
cision of  the  Court  of  Common 
Pleas  was  right,  even  had  the  con-  See 
tingencies  been  included  in  one 
expression;  for  in  case  of  the  death 
of  P.  without  leaving  any  issue 
living  at  his  death,  the  gift  over 
would  have  taken  effect  as  a  re- 


7  Hare,  597-600. 

2  De  G.  M.  &  G.  180-184. 

§  252  et  seq.,  ante. 

16  Sim.  395. 

1  K.  &  J.  296. 

See  §  480,  post. 

7  E.  &  B.  650. 


320  THE    RULE   AGAINST   PERPETUITIES. 

too  remote.  The  Court  said  that  even  if  the  gift  over  on  R.'s 
acquiring  the  other  land  could  be  considered  as  a  distinct 
gift  from  the  gift  on  his  issue's  acquiring  it,  yet  here  the  latter 
gift  only  could  take  effect,  and  that  was  clearly  too  remote. 
There  is  nothing  in  the  opinion  intimating  that  the  Court 
thought  the  gifts  were  distinct.1 

§  348.  Cambridge  v.  Rons.2  Here  there  was  a  gift  over  on 
the  death  of  C.,  "not  leaving  any  child  or  children  at  the  time 
of  her  death,  or  the  death  of  all  her  children  under  the  age  of 
twenty-seven."  C.  never  had  any  issue.  Held,  that  the  gift 
over  took  effect. 

§  349.  Miles  v.  Harford.3  A  testator  devised  freehold  land 
to  trustees  to  the  use  of  R.  for  life,  remainder  to  the  use  of 
R.'s  first  and  other  sons  in  tail  male,  remainder  to  the  use  of 
G.  for  life,  remainder  to  the  use  of  G.'s  first  and  other  sons  in 
tail  male,  provided  that  if  R.  or  any  issue  male  of  R.  should 
become  entitled  to  certain  estates,  and  if  G.  or  any  of  his 
issue  male  should  be  then  living,  then,  and  in  that  case,  and 
so  often  as  the  same  should  happen,  the  use  limited  to  or  in 
trust  for  R.,  and  to  or  in  trust  for  his  issue  male,  should  abso- 
lutely cease.  The  testator  also  devised  his  leasehold  land  to 
trustees  upon  and  for  such  trusts,  interests,  and  purposes,  and 
with,  under,  and  subject  to  such  powers,  provisos,  and  direc- 
tions as,  regard  being  had  to  the  difference  in  the  tenure  of 
the  premises  respectively,  would  best  and  most  nearly  corre- 
spond with  the  uses,  trusts,  powers,  provisos,  and  directions  in 
the  will  declared  and  contained  concerning  the  testator's  free- 
hold estates.  R.  became  entitled  to  the  said  certain  estates. 
It  was  held  by  Jessel,  M.  R.,  that  the  gift  over  of  the  lease- 
holds took  effect.  The  Master  of  the  Rolls  thought  that  the 
gift  of  the  leaseholds  was  executory,  and  could  therefore  be 
framed  so  as  to  avoid  the  objection  of  remoteness;  but  he  also 
went  on  to  say  that  he  thought  the  gift  could  be  split  in  two, 
one  on  the  contingency  of  R.  getting  the  estates,  the  other  on 

1  But   see     Miles   v.    Harford,          *  25  Beav.  409,  414. 
§  349,  post.  »  12  Ch.  D.  691. 


SEPARABLE   LIMITATIONS. 


321 


the  contingency  of  the  issue  male  of  R.  getting  the  estates,  and 
that  the  former  was  good.  The  case  is  a  strong  one,  but  the 
opinion  seems  correct.1 


1  See  Attenborough  v.  Atten- 
borough,  1  Kay  &  J.  296,  and  other 
cases  cited,  §  480,  post. 

The  language  of  the  learned 
judge  in  Miles  v.  Harford  so  well 
expresses  the  law,  that  it  is  worth 
quoting  at  length.  "  This  only  dis- 
poses of  the  question  in  one  view, 
but  there  is  another  view,  and  as  I 
take  an  adverse  view  to  the  defend- 
ants on  this  also,  I  think  I  should 
express  my  views  on  that.  As  I 
understand  the  rule  of  law,  it  is 
a  question  of  expression.  If  you 
have  an  expression  giving  over  an 
estate  on  one  event,  and  that  event 
will  include  another  event  which 
itself  would  be  within  the  limit  of 
perpetuities,  or,  as  I  say,  the  Rule 
against  Perpetuities,  you  cannot 
split  the  expression  so  as  to  say  if 
the  event  occurs  which  is  within  the 
limit  the  estate  shall  go  over,  al- 
though, if  the  event  does  not  occur, 
the  gift  over  is  void  for  remoteness. 
In  other  words,  you  are  bound  to 
take  the  expression  as  you  find  it, 
and  if,  giving  the  proper  interpre- 
tation to  that  expression,  the  event 
may  transgress  the  limit,  then  the 
gift  over  is  void. 

"What  I  have  said  is  hardly 
intelligible  without  an  illustration: 
On  a  gift  to  A.  for  life,  with  a  gift 
over  in  case  he  shall  have  no  son 
who  shall  attain  the  age  of  twenty- 
five  years,  the  gift  over  is  void  for 
remoteness.  On  a  gift  to  A.  for 
life,  with  a  gift  over  if  he  shall  have 
no  son  who  shall  take  priest's  orders 
in  the  Church  of  England,  the  gift 
over  is  void  for  remoteness;  but  a 


gift  superadded,  'or  if  he  shall  have 
no  son,'  is  valid,  and  takes  effect  if 
he  has  no  son.  Yet  both  these 
events  are  included  hi  the  other 
event,  because  a  man  who  has  no 
son  certainly  never  has  a  son  who 
attains  twenty-five  or  takes  priest's 
orders  hi  the  Church  of  England, 
still  the  alternative  event  will  take 
effect,  because  that  is  the  expression. 
"The  testator,  in  addition  to  hia 
expression  of  a  gift  over,  has  also 
expressed  another  gift  over  on  an- 
other event  although  included  in 
the  first  event,  but  the  same  judges 
who  have  held  that  the  second  gift 
over  will  take  effect  where  it  is  ex- 
pressed, have  held  that  it  will  not 
take  effect  if  it  is  not  expressed, 
that  is,  if  it  is  really  a  gift  over  on 
the  death  before  attaining  twenty- 
five  or  taking  priest's  orders,  al- 
though, of  course,  it  must  include 
the  case  of  there  being  no  son.  That 
is  what  they  mean  by  splitting,  they 
will  not  split  the  expression  by 
dividing  the  two  events,  but  when 
they  find  two  expressions,  they  give 
effect  to  both  of  them,  as  if  you 
had  struck  the  other  out  of  the  will. 
That  shows  it  is  really  a  question 
of  words  and  not  an  ascertainment 
of  a  general  intent,  because  there 
is  no  doubt  that  the  man  who  says 
that  the  estate  is  to  go  over  if  A. 
has  no  son  who  attains  twenty-five, 
means  it  to  go  over  if  he  has  no  son 
at  all,  it  is,  as  I  said  before,  because 
he  has  not  expressed  the  events 
separately,  and  for  no  other  reason. 
That  is  my  view  of  the  authorities. 
This  is  a  question  of  authorities. 


322 


THE    RULE   AGAINST   PERPETUITIES. 


§  349  a.  In  Goodier  v.  Johnson1  a  testator  gave  property  at 
a  period  which  might  be  more  than  twenty-one  years  after  lives 
in  being,  to  be  divided  among  the  children  of  his  son  and 
daughter,  and  the  issue  of  such  of  them  as  might  be  then  dead 
leaving  issue,  such  issue  to  take  the  parent's  share.  It  was 


"Now,  we  come  to  the  case  we 
have  before  us.  The  estate  is  to  go 
over  if  any  of  his  sons  get  another 
estate,  that  is,  if  any  one  of  his  sons 
who  has  got  possession  of  this  estate 
gets  one  of  the  other  estates,  or  if 
any  of  the  issue  male  of  the  body 
of  any  of  the  sons  gets  the  estate. 
Here  you  have  two  events  ex- 
pressed. He  might  have  said,  if 
any  of  the  issue  male  of  my  body 
get  the  estate,  which  would  have 
included  both  events,  and  then  you 
could  not  have  split  it  up;  but  he  has 
not  said  so.  He  has  divided  it  for 
some  reason  or  other,  probably  a 
conveyancer's  one,  because  it  is  an 
alteration  of  a  conveyancer's  form. 
The  words  'sons'  and  'issue  male' 
are  both  added,  but  he  has  divided 
that  and  suggests  two  events,  then 
and  in  any  of  the  events  'and  so 
often  as  the  same  shall  happen  the 
uses  hereby  limited  of  and  concern- 
ing my  freehold  hereditaments  to 
or  in  trust  for  any  such  younger 
eon  or  whose  issue  male  shall  for 
the  time  being  become  entitled  as 
aforesaid,  and  to  or  in  trust  for  his 
issue  male  shall  absolutely  cease.' 
That  is,  there  is  a  cesser  of  the 
estate  either  of  the  younger  son  or 
the  issue  male  of  the  younger  son. 
Why  should  I  alter  the  words? 
Why  should  I  say  that  the  event 
of  the  younger  son  properly  ex- 
pressed succeeding  to  the  estate 
being  in  due  time  is  to  be  void  for 
remoteness?  The  reason  suggested 
to  me  is  this,  it  is  quite  plain  he 


means  it  to  go  along  the  whole  line. 
I  agree. 

"So  in  the  case  of  a  man  dying 
without  a  son  attaining  twenty-five. 
That  is  not  good  although  he  means 
it  to  apply  to  the  case  of  his  having 
no  son,  and  there  is  none.  It  is  not 
what  he  means  as  to  the  event,  but 
whether  he  has  expressed  the  event 
on  which  the  estate  is  to  cease,  so 
as  to  bring  one  alternative  within 
the  limits,  and  if  he  has  chosen  to 
say  the  estate  is  to  cease  first  of  all, 
as  he  might  have  said  if  a  younger 
son  becomes  a  peer  or  attains  the 
age  of  fifty,  or  any  other  event 
within  the  limits,  or  any  of  the 
issue  male  of  my  younger  sons  shall 
become  a  peer,  one  gift  over  might 
be  valid,  he  might  have  said  if  any 
of  my  issue  male  shall  become  a 
peer,  or  if  the  issue  male  of  my 
younger  son  become  a  peer  there- 
upon the  estate  shall  go  over,  that 
would  have  been  different,  but  I 
think  I  have  no  right  to  alter  the 
expression.  The  law  is  purely 
technical.  The  expressions  are 
there,  and  using  them  gives  effect 
to  the  real  intention.  Why  should 
I  go  out  of  my  way  to  extend  tech- 
nical law  to  a  case  to  which  it  has 
not  hitherto  been  extended?  It 
seems  to  me  that  I  ought  to  read 
the  expressions  as  I  find  them.  The 
event  which  is  expressed  has  hap- 
pened. It  is  within  legal  limits,  and 
I  think  the  estate  should  go  over."' 
Pp.  702-705.  See  §  354  o,  post. 

1  18  Ch.  D.  441. 


SEPARABLE   LIMITATIONS.  323 

held,  on  the  strength  of  other  provisions  in  the  will,  that  this 
was  a  vested  gift  hi  the  grandchildren,  with  a  substitution- 
ary  gift  over  to  the  issue  of  such  of  them  as  died  before  the 
period  of  distribution,  and  that  the  gift  to  the  grandchil- 
dren was  good,  although  the  substitutionary  gift  was  too 
remote. 

§  349  6.  The  case  of  Watson  v.  Young  l  has  been  previously 
discussed.2 

§  349  c.  In  re  Harvey.3  A  testatrix  who  had  two  daughters 
directed  that  "in  case  both  my  said  daughters  shall  die  without 
leaving  any  child  living  at  the  decease  of  the  survivor  of 
them  or  of  the  survivor  of  their  respective  present  or  any 
future  husbands,  then,  after  the  death  of  such  of  my  daughters 
as  may  happen  to  survive  the  other  of  them,  and  the  death  of 
the  survivor  of  then-  respective  husbands"  the  residue  of  the 
estate  was  given  over.  Both  daughters  died,  each  leaving  a 
husband,  but  no  issue.  It  was  held  by  the  Court  of  Appeal 
(overruling  North,  J.)  that  the  limitation  could  not  be  split,  and 
that  the  gift  over  was  too  remote. 

§  349  d.  Huichinson  v.  Tottenham 4  is  discussed  under 
powers.6 

§  349  e.  In  re  Hancock.6  Bequest  of  personalty  hi  trust 
for  A.  for  life,  and  on  her  death  in  trust  for  her  children 
upon  attaining  twenty-five,  if  sons,  or  upon  attaining  twenty- 
one,  or  marriage,  if  daughters,  "but  in  default  of  such  issue  then 
over."  A.  died  without  ever  having  had  a  child.  It  was  held 
by  the  House  of  Lords,  affirming  the  decisions  below,  that  the 
gift  over  was  not  separable  and  was  too  remote. 

§  350.  Attorney-General  v.  Wallace.7  Gift  by  will  on  the 
death  of  A.  without  child  or  children,  or  should  she  not  have 
any  child  alive  at  her  death,  or  should  her  child  or  children  die 

1  28  Ch.  D.  436.  other   cases    under    powers    cited, 

1  See  §  340  a,  ante.  §  480,  post. 

•  39  Ch.  D.  289.  •  [1901]  1  Ch.  (C.  A.)  482;  sub 
4  [1898]  1 1.  R.  403.  nom.   Hancock   v.   Watson,   [1902] 

*  §  522,   note,    post;  and    see      A.  C.  14. 

7  7  B.  Monr.  611,  616. 


324  THE   RULE  AGAINST  PERPETUITIES. 

without  issue,  in  either  event  over.  A.  died  without  leaving 
issue  at  her  death.  Held,  that  the  gift  over  took  effect. 

§  351.  Armstrong  v.  Armstrong.1  Gift  by  will  in  the  case 
of  A.  "departing  this  life  without  issue,  or  such  issue  dying 
themselves."  A.  died  without  leaving  issue  at  his  death.  It 
was  held  that  "departing  this  life  without  issue"  meant 
"dying  without  leaving  issue  at  death,"  and  that  the  gift 
over  took  effect. 

§  352.  Ackerman  v.  Vreeland.2  Bequest  to  A.  in  fee,  but 
if  she  died  without  issue,  or  her  children  died  before  they  had 
issue,  then  over.  A.  died  without  leaving  issue  living  at 
her  death.  Held,  that  the  gift  over  took  effect. 

§  353.  Jackson  v.  Phillips 3  and  Schettler  v.  Smith*  the 
latter  a  case  under  the  New  York  statutes,  are  cases  of  clearly 
separable  limitations,5  and  so  are  Perkins  v.  Fisher,6  Stone 
v.  Bradlee,"1  Gray  v.  Whittemore,*  Brown  v.  Wright,*  Quintan 
v.  Wickman; 10  and  see  Hewitt  v.  Green,11  Merkel  v.  Caponed 

§  353  a.  Donohue  v.  McNichol.13  A  devise  to  the  executor 
of  a  will  in  trust  to  pay  the  income  to  J.  for  life,  upon  J.'s  death 
leaving  issue  to  pay  the  income  to  such  issue  for  life,  and  on 
the  death  of  such  issue  in  trust  for  the  testator's  heirs  and 
assigns;  and  in  the  event  of  J.'s  dying  without  issue  the  exec- 
utor to  hold  the  property  for  the  testator's  lawful  heirs.  J. 
died  without  having  had  any  issue.  It  is  pretty  clear  that  in 
the  latter  gift  a  definite  failure  of  issue  was  intended,  and  that 
the  gifts  over  on  the  death  of  J.'s  issue  and  of  J.  himself  were 
distinct.  A  dictum,  therefore,  that  the  gift  over  on  the  death 
of  J.  was  bad  for  remoteness  seems  erroneous. 

§  353  6.  Seaver  v.  Fitzgerald.1*    A  testator  gavethe  residue  of 

14  B.  Monr.  333,  343-348.  8  192  Mass.  367. 

14  N.  J.  Eq.  23.  •  194  Mass.  540. 

14  Allen,  539,  572.  "  233  111.  39. 

41  N.  Y.  328.  u  77  N.  J.  Eq.  345. 

Cf.  Meller  v.  Stanley,  2'  De  G.  "  81  N.  J.  Eq.  282. 

J.  &  8.  183,  192.  »  61  Pa.  73.   See  Foulke,  Trea- 

59  Fed.  Rep.  (C.  C.  A.)  801.  tise,  §  348;  and  see  also  §  208,  ante. 

183  Maas.  165,  171,  172.  "  141  Mass.  401. 


SEPARABLE   LIMITATIONS.  325 

his  estate  to  the  executors  of  his  will  in  trust  to  apply  so  much 
of  the  income  as  was  needed  to  the  support  of  his  daughter  for 
life,  and  "if  she  shall  ever  have  a  child  or  children"  for  the 
support  of  such  children,  "the  balance  of  said  income  and  the 
property  after  the  death  of  my  said  child,  and  her  child  or 
children  (if  any),  shall  all  be  paid  over"  to  a  charitable  society. 
The  Court  held  that  the  gift  to  the  society  was  vested  and 
therefore  not  too  remote.  The  correctness  of  this  conclusion 
seems  unquestionable.  But  the  Court  go  on  to  say,  "Moreover, 
the  devise  was  to  take  full  effect,  with  right  of  possession,  upon 
the  death  of  the  testator's  daughter,  if  she  should  leave  no  child. 
In  point  of  fact,  she  left  none.  Therefore,  in  this  alternative 
contingency,  not  only  the  estate,  but  the  right  of  possession, 
would  certainly  vest  within  the  permitted  period;  and  as  this 
contingency  is  the  one  which  happened,  the  validity  of  the 
devise  would  not  be  affected  by  the  consideration  that  the  other 
contingency  might  be  too  remote."  This  dictum  is  hardly  to 
be  supported;  there  seems  to  be  no  separable  limitation  here. 

§  353  c.  The  case  of  Siedler  v.  Syms  i  is  stated,  §  410  b,  et 
seq.,  post. 

§  354.  The  statement  in  the  Third  Report  of  the  Real 
Property  Commissioners,2  that  "if  an  executory  estate  be 
limited  to  take  effect,  either  in  case  A.  shall  die  in  the  life- 
time of  B.,  or  in  case  there  shall  be  an  indefinite  failure  of 
issue  of  C.,  the  whole  will  be  void,"  if  it  is  intended  to  apply 
to  the  case  where  the  contingencies  are  expressed  separately,  is 
certainly  incorrect.3 

§  354  a.  The  doctrine  that  where  a  testator  has  not  himself 
separated  limitations,  the  law  will  not  separate  them  for  him 
is  spoken  of,  by  Jessel,  M.  R.,  in  Miles  v.  Harford,4  as  "techni- 
cal," but  it  is  an  almost  necessary  doctrine,  because  the  line  of 
separation  may  be  drawn  at  an  infinite  number  of  places,  and 

1  56  N.  J.  Eq.  275.  «  12   Ch.  D.    691,  704,  quoted 

1  P.  42.  §  349,  note,  ante. 

*  As  is  remarked  in  Marsden, 
Perp.  78. 


326  THE   BULB  AGAINST  PERPETUITIES. 

there  is  nothing  to  determine  which  of  them  shall  be  taken. 
Thus  suppose  personal  property  is  bequeathed  to  A.  and  on 
default  of  his  issue  to  B.,  the  line  may  be  drawn  between  a 
default  of  issue  at  A.'s  death,  and  a  default  later;  or  between 
a  default  within  twenty-one  years  after  A.'s  death,  and  a  de- 
fault later;  or  between  a  default  within  ten  years  after  A.'s 
death,  and  a  default  later;  or  between  a  default  during  the  lives 
of  all  the  present  reigning  sovereigns  of  Europe,  and  a  default 
later;  or  between  a  default  during  the  lives  of  all  the  present 
members  of  the  Briggsville  Whist  Club,  and  a  default  later; 
there  is  no  guide  for  the  court  where  the  separation  shall  be 
made.1 

§  355.  The  rule  that  you  cannot  split  a  gift  must  not  be 
extended  to  the  case  of  gifts  to  a  class,  where  the  gift  to  each 
member  of  the  class  is  entirely  independent  of  the  gifts  to  the 
other  members.  Thus  under  a  bequest  of  $1,000  to  each  one 
of  the  testator's  grandchildren  who  reaches  twenty-five,  grand- 
children living  at  the  testator's  death  will  take  the  legacy, 
although  those  born  afterwards  cannot.8 

§  356.  There  is  a  special  class  of  cases  which  seems  to  form 
an  exception  to  the  rule  that  a  gift  not  split  by  the  donor 
cannot  be  split  by  the  law,  but  which,  from  its  peculiar  char- 
acter, is  not  likely  to  be  extended.  When  personal  prop- 
erty is  bequeathed  to  a  series  of  persons  not  in  esse  by  words 
which  would  create  successive  estates  tail  if  the  subject  of 
the  gift  were  real  estate,  and  the  first  person  does  not  come 
in  esse,  the  next  will  take.  For  instance,  suppose  the  bequest 
takes  this,  which  is  the  usual,  form:  Leaseholds  or  other  per- 
sonal property  are  given  to  A.  for  life,  remainder  to  the  first 
and  other  sons  of  A.  in  succession,  and  the  heirs  male  of  their 
respective  bodies;  and  in  default  of  such  issue  of  A.,  to  B.  for 
life,  remainder  to  the  first  and  other  sons  of  B.  in  succession, 
and  the  heirs  male  of  their  respective  bodies.  Here  if  A.  and 
B.  die,  and  A.  has  no  sons,  then  the  first  son  of  B.  will  take. 

1  See  App.  G,  §§  857  et  seq.,  *  See  these  cases  discussed, 
post.  §§  389  et  seq.,  post. 


SEPARABLE   LIMITATIONS.  327 

§  357.  Mr.  Lewis  1  and  Mr.  Jarman 2  do  not  seem  to  regard 
this  as  any  exception  to  the  ordinary  mode  of  applying  the 
Rule  against  Perpetuities.  But  an  exception,  it  is  submitted, 
it  really  is.3  If  there  were  no  Rule  against  Perpetuities  the 
limitations  over  would  take  effect  not  merely  if  A.  never  had 
sons,  but  also  if  A.  had  sons  whose  issue  afterwards  failed. 
Now  applying  the  Rule  against  Perpetuities,  the  limitation  on 
the  latter  contingency  is  certainly  too  remote,  and  the  limita- 
tion over  in  case  A.  has  in  fact  no  sons  can  only  be  preserved 
in  one  of  the  two  following  ways: — 

§  358.  First.  The  gift  over  in  case  A.  dies  without  ever 
having  had  male  issue  may  be  separated  from  the  gift  over  in 
case  such  issue  becomes  extinct.  By  doing  this  the  former 
gift  can  be  sustained,  although  the  latter  is  bad.  But  to  do 
this  is  in  conflict  with  the  principle  that  a  gift  expressed  as 
one  cannot  be  separated  into  two,  for  there  is  certainly  but 
one  gift  here  expressed. 

§  359.  Secondly.  The  gift  over  may  be  construed  to  be  a 
gift  only  in  case  A.  never  has  any  male  issue.  But  apart 
from  the  Rule  against  Perpetuities  no  such  construction  would 

1  Perp.  509;  Suppl.  169.  bequeathed  to  A.  and  the  heirs  of 
*  2  Jarm.  Wills  (6th  ed.)  1202.  his  body,  and  if  A.  die  without 
Of.  In  re  Lowman,  [1895]  2  Ch.  issue,  living  B.,  then  to  B.,  the  gift 
(C.  A.)  348,  365-369.  to  B.  was  held  good  in  Lamb  v. 
3  See  2  Prest.  Abs.  171.  The  Archer,  1  Salk.  225,  cited  by  Jar- 
opinions  of  Mr.  Lewis  and  Mr.  Jar-  man  in  2  Jarm.  Wills  (6th  ed.) 
man  seem  to  rest  upon  the  ground  1204.  An  executory  bequest  after 
that  there  can  be  no  executory  be-  an  absolute  bequest  of  personalty 
quest  over  after  a  bequest  of  per-  is  bad  only  when  and  because  it  is 
sonalty  to  one  and  the  heirs  of  his  too  remote.  Instances  like  that 
body,  and  that  therefore  such  a  be-  in  the  preceding  section  therefore 
quest  as  is  given  in  the  preceding  seem  in  principle  to  belong  to  the 
section  must  have  been  intended  to  class  of  cases  where  a  settlor  or 
take  effect  only  upon  A.'s  dying  testator  has  used  only  one  expres- 
without  having  issue  at  his  death.  sion  to  cover  gifts  upon  contin- 
But  an  executory  bequest  after  a  gencies  which  are  too  remote  and 
bequest  of  personalty  to  one  and  contingencies  which  are  not  too 
the  heirs  of  his  body  is  in  itself  remote, 
good.  Thus  where  a  leasehold  is 


328  THE  RULE  AGAINST  PERPETUITIES. 

ever  be  adopted,  and  it  is  settled  law  that  the  Rule  ought  not 
to  affect  construction.1 

§  360.  Whichever  mode,  therefore,  of  supporting  the  gift 
over  under  the  circumstances  that  A.  dies  without  ever  having 
had  issue  is  adopted,  there  seems  to  be  an  exception  to  the 
general  rule.2 

§  361.  Such  limitations  were  originally  held  void  for  re- 
moteness.3 But  in  Higgins  v.  Dowler*  (1707)  Lord  Cowper,  C., 
held  such  a  limitation  to  be  good; 5  and  so  did  Sir  Joseph  Jekyll, 
M.  R.,  in  Stanley  v.  Leigh 6  (1732).  In  1734,  however,  in  Clare 
v.  Clare  7  and  Sabbarton  v.  Sabbarton,*  Lord  Talbot,  C.,  re- 
fused to  follow  Higgins  v.  Dowler  and  Stanley  v.  Leigh,  and 
held  such  limitations  to  be  too  remote.  But  afterwards  he 
sent  a  case  arising  under  the  same  will  as  was  in  question 
in  Sabbarton  v.  Sabbarton  to  the  Court  of  King's  Bench,  who 
certified  that  the  gift  over  was  good; 9  and  Lord  Hardwicke, 
who  succeeded  Lord  Talbot,  made,  in  1739,  a  decree  accord- 
ingly,10 and  in  Gower  v.  Grosvenor  u  (1740)  he  expressed  a  strong 
opinion  to  the  same  effect.12 

§  362.  In  the  mean  time  the  House  of  Lords,  in  Brett  v. 
Sawbridge 13  (1736),  had  held  such  a  limitation  too  remote. 

1  See    Chap.  XIX.,    post;  and          *  Sabbarton  v.  Sabbarton,  Cas. 

also  Lamb  v.  Archer,  ubi  sup.  temp.  Talb.  245,  250. 

•  See    1  Jann.  Wills   (6th  ed.)          10  See  2  P.  Wms.  699,  note.    The 
361.  gift  over  in  Sabbarton  v.  Sabbarton 

1  Backhouse  v.  Bellingham,  Pol-  was  on  dying  without  leaving  issue. 

lexf.  33  (1664).  Burges  v.  Burges,  This  is  now  held  in  the  case  of  per- 

Pollexf.  40;  1  Mod.  115;  1  Ch.  sonalty  to  refer  to  a  definite  failure 

Cas.  229;  Finch,  91  (1674);  §  166,  of  issue,  Forth  v.  Chapman,  1  P. 

ante.  Wms.  663;  2  Jarm.  Wills  (6th  ed.) 

4  1  P.  Wms.  98;  2  Vern.  600;  1959;  but  Lord  Talbot  considered 

9vb  nom.  Higgins  v.  Derby,  1  Salk.  that  an  indefinite  failure  of  issue  was 

156.  meant,  and  so  did  Lord  Hardwicke. 

•  See   Stanley    v.   Leigh,    2   P.  See  Gower  v.  Grosvenor,  5  Mad.  337, 
Wms.  686,  694-698;  Clare  v.  Clare,  346,  347;  Barnard.  Ch.  54,  61,  62. 
Cas.  temp.  Talb.  21,  26;  Wyth  v.  u  5  Mad.  337;  Barnard.  Ch.  54. 
Blackman,  1  Ves.  Sr.  196,  202.  "  But  see  Lord  Hardwicke's  re- 

•  2  P.  Wms.  686.  marks  in  Wyth  v.  Blackman,  1  Ves. 
»  Cas.  temp.  Talb.  21.                      Sr.  196,  202. 

•  Cas.  temp.  Talb.  55.  »  3  Bro.  P.  C.  (Toml.  ed.)  141. 


SEPARABLE   LIMITATIONS. 


329 


But  in  Pelham  v.  Gregory  1  (1760)  they  held  it  good  when- 
ever the  persons  to  whom  the  prior  interests  were  given  did 
not  in  fact  come  into  existence;  and  the  law  has  been  so  settled 
in  England  ever  since.2 

§  363.  Where  personalty  is  given  to  go  according  to  limi- 
tations of  realty,  the  words  "so  far  as  law  and  equity  will  per- 
mit," or  like  expressions,  are  often  used,  and,  in  connection 
with  the  exception  just  discussed,  have  given  rise  to  a  series 
of  cases.3 

§  364.  It  was  once  held  by  Lord  Hardwicke,  C.,4  that  such  a 
trust  was  executory,  and  that  the  personalty  ought  to  be  so 
settled  that  if  the  first  tenant  in  tail  died  under  twenty-one  it 
would  go  over  to  the  person  who  should  succeed  him  in  the  realty.5 

§  365.  But  this  is  now  overruled,  and  it  is  settled  that 


i  3  Bro.  P.  C.  (Toml.  ed.)  204. 

1  Knight  v.  Ellis,  2  Bro.  C.  C. 
570.  Phipps  v.  Mulgrave,  3  Ves. 
Jr.  613.  Boydell  v.  Golightly,  14 
Sim.  327.  Lewis  v.  Hopkins,  3 
Drew.  668;  sub  nom.  Williams  v. 
Lewis,  6  H.  L.  C.  1013.  In  re  Low- 
man,  [1895]  2  Ch.  (C.  A.)  348. 
Lewis,  Perp.  Suppl.  87,  88,  169. 
Marsden,  Perp.  127.  3  Dav.  Prec. 
Conv.  (3d  ed.)  602,  note. 

8  It  may  be  worth  while  to  note 
the  following  passage  in  Haven  v. 
Haven,  181  Mass.  573,  578:  "As- 
suming that  under  our  law  as  under 
the  English  law,  see  Hill  v.  Hill, 
[1897]  1  Q.  B.  483,  personal  chat- 
tels may  be  disposed  of  by  will  so  as 
to  pass  with  the  realty  as  heirlooms 
or  as  fixtures  in  the  nature  of  heir- 
looms, there  is  no  intention  mani- 
fested that  the  title  to  or  even  the 
possession  of  the  portraits  should 
pass  with  or  accompany  the  title 
to  the  mansion  house."  In  its  legal 
sense  an  "heirloom"  is  a  chattel 
which  goes  to  the  heir,  not  as  a  fix- 


ture to  realty,  but  by  an  imme- 
morial special  custom.  There  are 
therefore  no  "heirlooms,"  properly 
so  called,  in  this  country.  "Heir- 
loom" is  often,  however,  used  in 
its  popular  sense  as  meaning  a 
chattel  which  is  settled  or  be- 
queathed so  as  to  go  to  the  person 
to  whom  certain  real  estate  goes. 
An  "heirloom"  in  this  sense  does 
not  differ,  in  the  eye  of  the  law, 
from  any  other  chattel;  it  ia 
merely  a  chattel  given  to  certain 
persons,  and  as  in  Hill  v.  Hill,  ubi 
sup.,  it  is  in  this  popular  sense  that 
"heirloom"  is  used  in  Haven  v. 
Haven,  ubi  sup.  See  per  Chitty,  J., 
in  Hill  v.  Hill,  [1897]  1  Q.  B.  483, 
494,  495;  1  Wms.  Exec.  (9th  ed.) 
633  et  seq.;  Wms.  Pers.  Prop.  (17th 
ed.)  141,  142. 

4  Gower  v.  Grosvenor,  5  Mad. 
337;  Barnard.  Ch.  54. 

6  He  made  a  like  ruling  in  Traf- 
ford  v.  Trafford,  3  Atk.  347.  See 
Scaredale  v.  Curzon,  1  J.  &  H.  40, 
59-61. 


330 


THE   RULE  AGAINST  PERPETUITIES. 


where  personalty  is  placed  in  trust  to  go  with  settled  land* 
"so  far  as  the  rules  of  law  or  equity  will  permit,"  every  one 
who  takes  a  life  estate  in  the  realty  takes  a  life  interest  hi  the 
personalty  until  you  come  to  a  person  in  whom  vests  an  estate 
tail  in  the  realty.  Such  a  person  takes  an  absolute  interest  hi 
the  personalty.1  It  has  often,  however,  been  regretted  that 
these  trusts  are  not  still  deemed  executory.2 

§  366.  Sometimes  an  express  provision  prevents  such  an 
executed  trust  of  personalty  from  vesting  absolutely  in  the 
first  tenant  in  tail  before  he  reaches  twenty-one.3 


1  Foley  v.  Burnell,  1  Bro.  C.  C. 
274,  285;  4  Bro.  P.  C.  (Toml.  ed.) 
319.  Vaughan  v.  Burslem,  3  Bro. 
C.  C.  101.  Fordyce  v.  Ford,  2  Ves. 
Jr.  536.  Carr  v.  Erroll,  14  Ves. 
478.  Stratford  v.  Powell,  1  Ball.  & 
Beat.  1.  Rowland  v.  Morgan,  6 
Hare,  463;  2  Phil.  764.  Doncaster 
v .  Doncaster,  3  K.  &  J.  26.  John- 
eon's  Trusts,  L.  R.  2  Eq.  716.  See 
especially  Scarsdale  v.  Curzon,  1  J. 
&  H.  40,  where  the  cases  are  fully 
discussed;  and  also  Christie  v.  Gos- 
ling, L.  R.  1  H.  L.  279;  Harrington 
v.  Harrington,  L.  R.  3  Ch.  564; 
L.  R.  5  H.  L.  87, 101, 107;  In  re  Ex- 
mouth,  23  Ch.  D.  158;  In  re  John- 
ston, 26  Ch.  D.  538;  In  re  Anger- 
stein,  [1895J  2  Ch.  883;  In  re  Hill, 
[1902]  1  Ch.537;  [1902]  1  Ch.  (C.  A.) 
807;  In  re  FotherguTs  Estate, 
[1903]  1  Ch.  149;  In  re  Chesham, 
31  Ch.  D.  466;  In  re  Chesham's 
Settlement,  [1909]  2  Ch.  329;  Lewis, 
Perp.  585,  644,  645;  1  Jarm.  Wills 
(6th  ed.)  692  et  seq.;  Theob.  Wills 
(7th  ed.)  720;  3  Dav.  Prec.  Conv. 
(3d  ed.)  600,  601;  Lewin,  Trusts 
(10th  ed.)  133;  2  L.  C.  in  Eq.  (8th 
ed.)  788,  805  et  seq.  Cf.  Montagu 
v.  Inchiquin,  23  W.  R.  592;  In  re 
Bute,  27  Ch.  D.  196;  In  re  Finch's 
Contract,  [1903]  2  Ch.  486. 


1  Per  Lord  Eldon,  Lincoln  ». 
Newcastle,  12  Ves.  218,  236.  Per 
Lord  Cottenham,  Rowland  v.  Mor- 
gan, 2  Phil.  764,  767.  Per  Lords 
Westbury  and  Cairns,  Harrington 
v.  Harrington,  L.  R.  5  H.  L.  87, 
101,  107.  See  In  re  Hill,  [1902]  1 
Ch.  (C.  A.)  807,  815. 

As  to  the  provisions  which  will 
make  such  a  trust  executory,  and 
as  to  how  such  a  trust,  when  exec- 
utory, will  be  executed,  see  New- 
castle v.  Lincoln,  3  Ves.  Jr.  387;  12 
Ves.  218;  Scarsdale  v.  Curzon,  1  J. 
&  H.  40;  Holmesdale  v.  West,  L.  R. 
3  Eq.  474;  sub  nom.  Sackville-West 
v.  Holmesdale,  L.  R.  4  H.  L.  543; 
Shelley  v.  Shelley,  L.  R.  6  Eq.  540; 
Miles  v.  Harford,  12  Ch.  D.  691; 
Marsden,  Perp.  131-135;  2  L.  C.  in 
Eq.  (8th  ed.)  789;  Lewin,  Trusts 
(10th  ed.)  124-126,  132-134;  §  418, 
post.  The  usual  form  of  executing 
such  a  trust  is  to  suspend  vesting 
in  the  first  tenant  in  tail  until  he 
reaches  the  age  of  twenty-one 
years. 

*  See  Newcastle  v.  Lincoln,  3 
Ves.  Jr.  387;  12  Ves.  218;  Potto 
v.  Potts,  3  J.  &  Lat.  353;  1  H.  L 
C.  671  (Sugd.  Law  Prop.  293-299); 
Scarsdale  v.  Curzon,  1  J.  &  H.  40; 
Cox  v.  Sutton,  25  L.  J.  Ch.  845;  2 


SEPARABLE   LIMITATIONS. 


331 


§  367.  A  gift  of  personalty  which  would  be  otherwise  good 
under  the  preceding  sections  is  not  rendered  bad  by  a  provi- 
sion that  it  shall  not  vest  absolutely  in  any  tenant  in  tail 
unless  he  shall  attain  the  age  of  twenty-one  years.  Such  pro- 
vision is  only  applicable  to  those  who  might  otherwise  have 
taken,  viz.,  tenants  in  tail  by  purchase;  it  does  not  have  the 
effect  of  extending  the  number  who  could  take,  and  thereby 
rendering  the  gift  remote.1 

§  368.  The  separableness  of  gifts  to  classes  and  to  series 
will  be  considered  in  the  two  following  chapters. 


Jur.  N.  s.  733;  Hogg  v.  Jones,  32 
Beav.  45;  Johnson's  Trusts,  L.  R. 
2  Eq.  716;  Harrington  v.  Harring- 
ton, L.  R.  3  Ch.  564;  L.  R.  5  H.  L. 
87,  93,  note;  Holloway  v.  Webber, 
L.  R.  6  Eq.  523;  sub  nom.  Martelli 
v.  Holloway,  L.  R.  5  H.  L.  532;  In 
re  Fothergill's  Estate,  [1903]  1  Ch. 
149;  1  L.  C.  in  Eq.  (5th  ed.)  36; 
In  re  Chesham,  31  Ch.  D.  466;  In 
re  Chesham's  Settlement,  [1909]  2 
Ch.  329;  1  Jarm.  Wills  (6th  ed.) 
692  et  seq.,  698,  note;  Theob.  Wills 
(7th  ed.)  721;  3  Dav.  Free.  Conv. 
(3d  ed.)  625,  note;  Hayes  &  Jarm. 
Forms  of  Wills  (13th  ed.)  428,  429. 
1  Gosling  v.  Gosling,  1  De  G.  J. 


&  S.  1;  sub  nom.  Christie  v.  Gosling, 
L.  R.  1  H.  L.  279  (overruling  Gos- 
ling t>.  Gosling,  32  Beav.  58).  Hol- 
loway v.  Webber,  L.  R.  6  Eq.  523; 
sub  nom.  Martelli  v.  Holloway,  L.  R. 
5  H.  L.  532.  Harrington  v.  Har- 
rington, L.  R.  3  Ch.  564;  L.  R.  5 
H.  L.  87.  Wells  v.  Wells,  [1890] 
W.  N.  29.  Marsden,  Perp.  124- 
131. 

As  to  a  gift  of  the  principal  of  a 
fund  "after  the  law  admits  of  no 
further  division"  of  the  income,  see 
Pownall  v.  Graham,  33  Beav.  242; 
In  re  Moore,  [1901]  1  Ch.  936;  Fit- 
chie  v.  Brown,  18  Hawaii,  52;  211 
U.S.  321;  §§  219-219  6,  aide. 


332  THE  RULE  AGAINST  PERPETUITIES. 


CHAPTER  X. 
LIMITATIONS  TO  CLASSES. 

§  369.  THERE  is  often  a  gift  to  a  class  of  persons,1  for  ex- 
ample, to  the  grandchildren  of  a  testator,  upon  a  contingency 
which  may  happen  beyond  the  limits  of  the  Rule  against 
Perpetuities;  as,  for  instance,  a  bequest  of  money  to  be  divided 
among  those  of  the  testator's  grandchildren  who  reach  twenty- 
five.  Such  a  gift  is  bad,  although  the  testator  has  grand- 
children living  at  his  death.2  For  although,  if  the  living 
grandchildren  reach  twenty-five,  they  must  do  so  during  lives 
in  being  at  the  testator's  death,  namely,  their  own  lives,  yet 
as  they  may  all  die  before  reaching  twenty-five,  the  class  may 
ultimately  be  composed  of  grandchildren  not  born  at  the  testa- 
tor's death,  and  the  bequest  may  therefore  vest  more  than 
twenty-one  years  after  the  end  of  all  lives  then  in  being. 

§  370.  A  devise  to  the  testator's  grandchildren  as  a  class 
is  good  if  the  vesting  is  not  postponed  to  a  tune  after  they 
become  of  age,  for  they  must  all  become  of  age  within  twenty- 
one  years  after  the  death  of  their  parents  (the  testator's  chil- 
dren), and  the  parents  must  all  have  been  born  (or  begotten) 
in  the  testator's  lifetime.3  What  is  true  of  a  devise  to  grand- 

1  A  class  is  a  number  of  per-  *  Woodruff  v.  Pleasants,  81  Va. 

sons  having  a  common  charac-  37.  Otterback  v.  Bohrer,  87  Va. 

teristic.  By  a  gift  to  a  class  is  548.  Gifts,  however,  have  often 

meant  a  gift  to  persons,  the  share  failed  by  being  made  to  such  grand- 

of  each  of  whom  is  determined  by  children  as  survive  both  their  par- 

the  number  of  the  class.  See  1  ents,  viz.  the  testator's  child,  and 

Jarm.  Wills  (6th  ed.)  336,  431  his  or  her  wife  or  husband.  As  the 

et  seq.  testator's  child  may  marry  some 

*  But  see  Edgerly  t>.  Barker,  66  person  unborn  at  the  testator's 

N.  H.  434;  §  398  b,  and  App.  G,  death,  such  a  gift  to  grandchildren 

§§  857  et  seq.,  post.  is  too  remote.  See  §  214,  ante. 


LIMITATIONS  TO   CLASSES.  333 

children  of  the  testator  is  true  also  of  a  devise  to  grandchildren 
of  a  person  who  has  died  before  the  testator;  but  a  devise  at 
majority  to  all  the  grandchildren  of  a  person  who  is  living  at 
the  testator's  death  is  bad,  for  such  person  may  have  children 
born  after  the  testator's  death,  and  the  children  of  such  chil- 
dren may  not  be  born  within  twenty-one  years  after  the  death 
of  all  persons  living  at  the  testator's  death.1 

§  371.  In  a  marriage  settlement  limitations  to  the  grand- 
children of  the  parties  of  the  marriage  are  not  good,  and 
limitations  to  the  children,  in  order  to  be  good,  must  vest  in 
them  not  later  than  twenty-one. 

§  372.  The  usual  case  of  a  gift  to  a  class  which  violates  the 
Rule  against  Perpetuities  is  that  of  a  devise  to  such  of  the 
grandchildren  of  the  testator  (or  of  the  children  of  some 
living  person)  as  reach  an  age  over  twenty-one,  say  twenty- 
five;  and  this  will  serve  as  a  typical  case.  The  first  point  to 
consider  is  whether  the  devise  is  to  vest  at  twenty-five,  or 
whether  it  vests  at  the  death  of  the  parent  (or  other  period 
not  too  remote),  subject  to  be  divested  if  a  devisee  dies  under 
twenty-five.  In  the  former  case  the  devise  is  bad;  in  the 
latter  the  devise  is  good,  and  the  divesting  gift  over  bad.2 

§  373.  Assuming  then  that  the  devise  is  not  to  vest  until 
the  remote  period,  the  devise  to  the  whole  class  is  bad;  and 
it  is  immaterial  that  some  persons  are  in  esse  who,  should  they 
reach  twenty-five,  would  be  entitled  to  share,  for  none  of 
them  may  reach  twenty-five,  and  the  whole  class  may  ulti- 
mately be  composed  of  persons  who  are  not  born  at  the  tes- 
tator's death.  This  seems  to  have  been  first  ruled  by  Lord 
Kenyon  in  Jee  v.  Audley 3  (1787) ;  but  the  most  important 
case  is  Leake  v.  Robinson  (1817)  ,4  in  which  Sir  William  Grant, 

1  Belfield    v.   Booth,   63    Conn.  Theob.  Wills  (7th  ed.)  c.  44;  Haw- 
299.  kins,  Wills,  c.  18;  Marsden,  Perp. 

2  The  cases  on  this  question  of  c.  11. 
construction    are   very    numerous.  *  1  Cox,  324. 

See   Chap.   III.,   ante,   and  §  209,  4  2  Mer.  363,  388  et  seq.     See 

ante;  Re  Sevan's  Trusts,  34  Ch.  D.  Lyons  v.  Bradley,  168  Ala.  505, 
716;  1  Jarm.  Wills  (6th  ed.)  c.  37;  515. 


334 


THE   BULB  AGAINST  PERPETUITIES. 


M.  R.,  held  that  the  whole  gift  was  void,  and  so  the  law  has 
stood  ever  since. 

§  374.  The  later  cases  in  which  gifts  by  will  to  grandchil- 
dren of  the  testator  (or  to  children  of  living  persons)  on  their 
attaining  an  age  greater  than  twenty-one  have  been  held  void 
for  remoteness  are  numerous.1  So  limitations  hi  a  marriage 
settlement  to  children  of  the  marriage  at  an  age  beyond  twenty- 
one  are  too  remote.2  And  a  gift  by  will  to  be  divided  between 
such  grandsons  as  reach  twenty-eight,  and  such  granddaughters 
as  reach  twenty-one,  is  bad  altogether.3 

§  375.   In  gifts  to  those  members  of  a  class  who  reach  a 
1  Bull  v.  Pritchard,  1  Russ.  213;      414.     Willson   ».    Cobley,     [1870] 


5  Hare,  567.  Vawdry  v.  Geddes,  1 
Russ.  &  M.  203.  Judd  v.  Judd,  3 
Sim.  525.  Dodd  v.  Wake,  8  Sim. 
615.  Newman  v.  Newman,  10  Sim. 
51.  Cromek  v.  Lumb,  3  Y.  &  C. 
565.  Comport  v.  Austen,  12  Sim. 
218.  Blagrove  v.  Hancock,  16 
Sim.  371.  Boughton  v.  James,  1 
Coll.  26;  sub  nom.  Boughton  v. 
Boughton,  1  H.  L.  C.  406.  Ring 
v.  Hardwick,  2  Beav.  352.  Grif- 
fith v.  Blunt,  4  Beav.  248.  Bute  t>. 
Ilarman,  9  Beav.  320  (headnote 
wrong,  see  Boreham  v.  Bignall,  8 
Hare,  131,  and  Southern  v.  Wol- 
laston,  16  Beav.  166,  168,  note  6). 
Palmer  v.  Holford,  4  Russ.  403. 
Williams  v.  Teale,  6  Hare,  239. 
Boreham  v.  Bignall,  8  Hare,  131. 
Southern  v.  Wollaston,  16  Beav. 
166.  Pickford  v.  Brown,  2  K.  &  J. 
426.  Chance  v.  Chance,  16  Beav. 
572.  Merlin  v.  Blagrave,  25  Beav. 
125.  Rowland  v.  Tawney,  26  Beav. 
67.  Thatcher's  Trusts,  Id.  365. 
Thomas  v.  Wilberforce,  31  Beav. 
299.  Saver's  Trusts,  L.  R.  6  Eq. 
319.  Whitehead  v.  Bennett,  22 
L.  J.  Ch.  1020.  Patching  v.  Bar- 
nett,  49  L.  J.  Ch.  665;  51  I-  J.  Ch. 
74.  Bowyer  t;.  West,  24  L-  T.  R. 


W.  N.  46.  Blight  v.  Hartnoll,  19 
Ch.  D.  294.  Sears  v.  Putnam, 
102  Mass.  5.  Hall  v.  Hall,  123 
Mass.  120.  Davenport  v.  Harris, 
3  Grant  (Pa.),  164.  See  Gooch  v. 
Gooch,  14  Beav.  565;  3  De  G.  M. 
&  G.  366;  Courtier  ».  Gram,  21 
Beav.  91;  Read  v.  Gooding,  Id. 
478;  4  De  G.  M.  &  G.  510;  Taylor 
v.  Frobisher,  5  De  G.  &  Sm.  191; 
Fosdick  v.  Fosdick,  6  Allen,  41; 
Howe  v.  Hodge,  152  111.  252;  Law- 
rence v.  Smith,  163  111.  149.  (On 
this  case  see  §  249  e,  ante.)  In 
Meyers  v.  Hamilton  Provident  Co., 
19  Ont.  358,  land  was  devised  to 
be  sold  within  three  years  after 
M.'s  youngest  child  should  reach 
twenty-one,  the  proceeds  to  be 
equally  divided  between  M.'s  chil- 
dren at  the  time  of  the  sale.  The 
devise  was  held  too  remote.  The 
headnote  to  this  case  is  inexact. 

1  Routledge  v.  Dorril,  2  Ves.  Jr. 
357.  Blakemore's  Settlement,  20 
Beav.  214.  Morse's  Settlement,  21 
Beav.  174.  Meikleham  v.  Meikle- 
ham,  [1873]  W.  N.  46.  Re  Warden, 
82  L.  T.  228. 

1  Ker  v.  Hamilton,  6  Viet.  L.  R. 
172. 


LIMITATIONS  TO  CLASSES.  335 

required  age,  which  all  the  members  of  the  class  may  not 
reach  till  a  period  beyond  the  limits  of  the  Rule  against  Per- 
petuities, there  is  often  a  member  of  the  class  who,  if  he  ever 
reaches  the  required  age,  must  do  so  within  the  limits  of  the 
Rule;  e.  g.  a  grandchild  of  the  testator  born  before  the  latter's 
death.  When  such  member  reaches  the  required  age,  say 
twenty-five,  the  class  is  closed,1  and  he  is  entitled  to  have  his 
proportionate  share  paid  to  him.  This  time  of  payment  to 
him  is  not  too  remote,  and  if  it  were  the  only  payment  to  him, 
it  would  be  good.  But  there  may  be  further  payments  to  him  or 
his  representatives;  other  members  of  the  class,  then  living, 
may  die  before  they  reach  twenty-five,  and  then  his  share  will 
be  increased  by  other  payments,  which  may  fall  beyond  the 
limits  of  the  Rule;  the  whole  gift  will  be  held  void.2  This 
was  the  character  of  the  circumstances  in  Leake  v.  Robinson,3 
^ind  in  many  of  the  long  series  of  cases  cited  in  the  note  to  the 
preceding  section.4 

§  375  a.  In  Estate  of  Williamson5  a  testator  directed  that 
the  income  of  his  estate  should  be  paid  to  his  four  children  in 
«qual  shares  for  life,  and  on  the  death  of  each  child  one-fourth 
of  the  principal  of  the  estate  should  be  conveyed  to  those  of 
its  children  who  should  have  attained  or  should  attain  twenty- 
five,  and  to  the  issue  of  any  such  who  should  have  died  or  who 
should  die  under  that  age  leaving  issue.  By  a  codicil  he 
directed  that  the  principal  of  the  whole  estate  should  be 
"reserved  and  preserved"  for  all  his  grandchildren  in  equal 
-shares  per  capita,  and,  therefore,  that  as  each  grandchild 
became  entitled  to  receive  its  share  the  same  should  be  de- 
termined "by  the  quotient  of  the  whole  reserved  principal 
divided  by  the  whole  number  of  my  grandchildren  then  living, 

1  See  §  379,  post.  and  void  for  remoteness  as  to  any- 

1  "It    cannot  take   effect  par-  thing   accruing  by  survivorship." 

tially,   or   by   instalments,    so    as  Marsden,  Perp.  87. 

to  be  valid  as  to  that  minimum  *  2  Mer.  363,  388  et  seq. 

amount,  or  share,  to  which  every  *  See  also  §§  381-385,  post. 

grandchild    attaining    twenty-two  *  12  Phila.  64. 

must,   at   all   events,   be   entitled, 


336  THE  RULE   AGAINST  PERPETUITIES. 

and  the  issue  of  such  of  them  as  shall  have  previously  died 
leaving  issue/'  per  stirpes.  The  Orphans'  Court  of  Phila- 
delphia held  that,  so  far  as  concerned  such  grandchildren  as 
should  attain  twenty-five,  the  validity  of  the  gift  to  them 
would  depend  on  the  contingency  of  whether  they  reached 
twenty-five  "within  twenty-one  years  of  the  death  of  the 
child  whose  share  is  to  be  divided;"  that  if  they  did  not,  "the 
limitation  to  this  extent  will  fail,  and  there  will  be  pro  tanto  an 
intestacy."  Even  assuming  the  gifts  to  the  grandchildren  to  be 
separable,1  which  is  more  than  questionable,  only  those  grand- 
children born  in  the  testator's  lifetime  could  take;  the  fact  that 
after-born  grandchildren  might  happen  to  reach  twenty-five 
within  twenty-one  years  after  the  death  of  the  child  whose  share 
was  to  be  divided  is  immaterial;  and  in  Coggins'  Appeal2  the 
same  will  was  before  the  Supreme  Court  of  Pennsylvania,  and 
the  gifts  to  the  grandchildren  were  held  not  to  be  separable,  and 
to  be  all  too  remote. 

§  376.  A  gift  to  the  grandchildren  of  a  woman,  or  to  such 
of  her  children  as  reach  an  age  greater  than  twenty-one,  is 
not  rendered  good  by  the  fact  that  the  woman  is  past  child- 
bearing.  For  the  purpose  of  applying  the  Rule  against  Per- 
petuities, both  men  and  women  are  considered  capable  of 
having  issue  so  long  as  they  live.3 

§  377.  A  gift  to  a  class  which  will  take  effect,  if  at  all,  as  a 
legal  remainder  of  real  estate,  at  the  termination  of  a  life 
in  being,  is  good,  although  if  it  had  been  an  executory  devise 
or  a  gift  of  an  equitable  interest  or  of  personalty  it  would  have 
been  bad.4 

§  378.  When  a  devise  is  confined  to  those  grandchildren  of  a 
testator  who  are  living  at  his  death,  it  is  good  at  whatever  age 
they  are  to  take.  So,  a  devise  over  on  the  death  under  twenty- 
one  of  those  grandchildren  of  A.  who  are  born  at  A.'s  death.6 

1  §§  389  et  seq.,  post.  •  Trickey  v.  Trickey,  3  Myl.  & 

»  124     Pa.    10.      See  Foulke,      K.  560.     Re  Watkins,  37  W.  R. 

Treatise,  §  471.  609.     Cf.  Hamilton  t>.  Rodgere,  38 

1  §  215,  ante.  Ohio  St.  242,  258. 
«  §  325,  ante. 


LIMITATIONS  TO   CLASSES.  337 

§  379.  Whenever  a  gift  is  made  to  such  children,  or  mem- 
bers of  some  other  class,  as  reach  a  certain  age,  the  class  is 
closed  when  one  member  of  it  reaches  the  required  age;  no 
after-born  person  can  be  included  in  it.1  Therefore,  upon  a 
devise  to  such  grandchildren  of  the  testator  (or  to  such  chil- 
dren of  a  living  person)  as  reach  twenty-five,  if  one  or  more 
of  the  grandchildren  (or  children)  have  reached  twenty-five  at 
the  testator's  death,  the  devise  is  not  too  remote,  for  no 
persons  can  be  included  in  the  class  except  those  who  are  living 
at  the  testator's  death.2 

§  380.  In  Porter  v.  Fox 3  there  was  a  gift  to  the  testator's 
nephew,  T.,  and  to  the  testator's  grandchildren  (his  children 
being  alive),  to  be  distributed  equally  as  T.  and  the  grand- 
children should  reach  twenty-five.  Shadwell,  V.  C.,  held  that 
the  gift  to  T.  was  void,  as  well  as  that  to  the  grandchildren. 
The  correctness  of  this  decision  was  questioned  by  Stuart, 
V.  C.,4  but  without  just  reason.  It  is  true  that  if  T.  is  ulti- 
mately a  member  of  the  class,  he  must  become  so  within  a  life 
in  being  at  the  testator's  death,  viz.  his  own  life;  but  then 
he  may  die  before  reaching  twenty-five,  and  so  never  be  a 
member  of  the  class  at  all;  and  even  if  he  is  a  member  of  the 
class,  his  share  cannot  be  determined  until  all  the  grand- 
children born  before  he  reaches  twenty-five  themselves  reach 
twenty-five  or  die,  and  that  may  be  more  than  twenty-one 
years  after  the  death  of  all  persons  living  at  the  testator's 
death.  Porter  v.  Fox  was  followed  in  Webster  v.  Boddington.5 

1  Hoste  v.  Pratt,  3  Ves.  Jr.  730.  man  speaks  of  Porter  v.  Fox  with 

2  Jarm.  Wills  (6th  ed.)  1675  et  seq.  approval,  the  editors  of  his  third 

1  Roper,  Wills  (4th  ed.)  46.  edition  said,  "If  the  gift  were  in 

*  Picken  v.  Matthews,  10  Ch.  D.  joint    tenancy,    would    the    whole 
264.    See  Re  Whitten,  62  L.  T.  R.  fund   accrue   to   the   individual?" 
391;  Re  Barker,  92  L.  T.  R.  831.  and  see  Theob.  Wills  (7th  ed.)  607; 

»  6  Sim.  485.  Marsden,  Perp.  101.     But  as  the 

4  In  James  v,  Wynford,  1  Sm.  interests  of  T.  and  the  grandchil- 

&  G.  40,  57-59.  dren  would  vest  at  different  times, 

*  26    Beav.    128.      See    Lewis,  they  could  not  be  joint  tenants. 
Perp.  456,  457;  1  Jarm.  Wills  (6th  Woodgate  v.  Unwin,   4  Sim.   129. 
ed.)  339.    At  the  place  where  Jar-  Hand  v.  North,  10  Jur.  N.  s.  7. 


338  THE  RULE  AGAINST  PERPETUITIES. 

§  381.  A  common  form  of  limitation  is  to  give  the  property 
to  such  of  the  children  of  A.,  a  living  person,  as  reach  twenty- 
one,  and  such  of  the  children  as  reach  twenty-one  of  any 
children  of  A.  who  die  under  twenty-one,  these  latter  taking 
the  parents'  share.  Here  there  is  a  gift  to  a  class  composed 
of  children  and  grandchildren  of  A.  at  twenty-one.  The 
maximum  number  of  shares  is  fixed  at  the  death  of  A.,  for  as 
the  grandchildren  take  only  their  parents'  share,  the  number  of 
shares  cannot  exceed  the  number  of  A.'s  children  who  are  living 
at  his  death;  but  if  any  one  of  A.'s  children  is  under  age  at 
A.'s  death,  such  child  may  die  under  age,  leaving  a  child  who 
may  not  become  of  age  till  more  than  twenty-one  years  after 
all  the  lives  in  being  at  the  death  of  the  testator  have  ended,  and 
as  therefore  the  minimum  number  of  shares  may  not  be  deter- 
mined within  the  prescribed  limits  the  whole  gift  is  void.1 

§  382.  That  such  limitations  are  bad  in  toto  is  a  necessary 
deduction  from  Leake  v.  Robinson*  and  they  were  so  held  in 
Seaman  v.  Wood 3  and  Webster  v.  Boddington.4  A  like  decision 
was  made  by  Malins,  V.  C.,  in  Stuart  v.  Cockerell,6  and  affirmed 
by  the  Lords  Justices; 6  yet  in  Smith  v.  Smith  7  Malins,  V.  C., 
decided  the  point  the  other  way,  but  he  was  overruled  in  the 
Court  of  Appeal  by  Lord  Hatherley,  C.,  and  Giffard,  L.  J.  In 
Re  Moseley's  Trusts  8  the  same  question  came  again  before 
Malins,  V.  C.  Smith  v.  Smith  was  not  referred  to,  and  the 
Vice-Chancellor  decided,  as  he  had  in  that  case,  that  the  gift  to 
the  children  was  separable  from  that  to  the  grandchildren,  and 
therefore  good.  But  in  Hale  v.  Hale  9  Jessel,  M.  R.,  decided,  in 
accordance  with  Seaman  v.  Wood,  Webster  v.  Boddington,  Stuart 
v.  Cockerell,  and  the  decision  of  the  Court  of  Appeal  in  Smith  v. 

1  Should   one   of  A.'s    children          *  26  Beav.  128.    See  Speakman 

have  reached  twenty-one  at  the  tea-  v.  Speakman,  8  Hare,  180;  Salmon 

tator's  death,  the  limitation  would  v.  Salmon,  29  Beav.  27. 
be  good,  as  no  children  born  after  L.  R.  7  Eq.  363. 

the  testator's  death  would  be  al-  L.  R.  5  Ch.  713. 

lowed  to  share.    See  §  379,  ante.  L.  R.  5  Ch.  342. 

*  2  Mer.  363.  L.  R.  11  Eq.  499. 

»  22  Beav.  591.  3  Ch.  D.  643. 


LIMITATIONS   TO   CLASSES.  339 

Smith,  that  the  whole  gift  was  void,  and  showed  conclusively 
that  this  result  was  a  necessary  consequence  of  the  law  as  it 
had  been  held  ever  since  Leake  v.  Robinson; 1  and  Fry,  J., 
made  a  ruling  to  the  same  effect  in  Bentinck  v.  Portland,2 

§  383.  After  this  the  same  will  upon  which  Malms,  V.  C., 
had  passed  in  Re  Moseley's  Trusts  came  before  Jessel,  M.  R., 
who  held,  as  he  had  held  before  in  Hale  v.  Hale,  that  the  gift 
to  the  grandchildren  could  not  be  separated  from  that  to  the 
children,  and  that  the  whole  was  bad.3 

§  384.  The  case  was  carried  to  the  Court  of  Appeal,  con- 
sisting of  James,  Baggallay,  and  Bramwell,  L.JJ.,  who  held 
themselves  bound  by  Smith  v.  Smith,  and  therefore  affirmed 
the  decision  of  the  Master  of  the  Rolls.  But  they  all,  most 
unaccountably,  expressed  their  disapproval  of  Smith  v.  Smith. 
James,  L.  J.,  said  that  he  entirely  went  along  with  the  reason- 
ing by  which  Malins,  V.  C.,  arrived  at  his  conclusion  in  Mose- 
ley's Trusts,4  and  that  if  he  had  been  at  liberty  to  express  his 
own  opinion  he  "should,  without  any  doubt  or  hesitation, 
have  concurred  in  that  conclusion."  Baggallay,  L.  J.,  also  felt 
bound  to  say  for  himself  that  he  agreed  with  the  views  expressed 
by  Vice-Chancellor  Malins.  And  Bramwell,  L.  J.,  while  agree- 
ing that  the  Court  was  bound  by  Smith  v.  Smith,  craved  "leave 
also  to  express  a  very  considerable  distrust  as  to  the  argu- 
ments by  which  that  decision  was  arrived  at." 5  The  learned 
Lords  Justices  gave  no  reasons,  however,  for  thinking  Smith 
v.  Smith  wrong. 

§  385.  The  case  then  went  by  appeal  to  the  House  of  Lords.6 
The  law  lords  (Lords  Selborne,  Penzance,  Blackburn,  and  Wat- 
son) were  much  puzzled  at  the  opinion  expressed  by  the  judges 
of  the  Court  of  Appeal,  that  their  own  decision  was  wrong,  and 

1  2  Mer.  363.  »  Moseley's  Trusts,  11  Ch.  D. 

1  7  Ch.  D.  693.    In  Re  Farns-  555. 
combe,  9  Ch.  D.  652,  Hall,  V.  C.,  «  L.  R.  11  Eq.  499. 

made  a  decision  in  accordance  with  8  Moseley's  Trusts,  11   Ch.  D. 

that  of  Malins,  V.  C.,  in  Re  Mose-  555. 

ley's  Trusts,  L.  R.  11  Eq.  499.  •  Pearks  v.  Moseley,  5  Ap.  Gas. 

714. 


340  THE   RULE   AGAINST  PERPETUITIES. 

wondered  what  the  reasons  of  those  judges  could  be:  but  they 
all  held  that  the  decision  was  right;  that  whatever  might  have 
been  said  if  the  question  had  been  an  open  one,  it  had  been 
"long  since  conclusively  determined  by  authority;"  that  they 
were  "surprised  to  find  it  raised  at  this  time;"  that  it  "was 
really  the  point  decided  in  the  case  of  Leake  v.  Robinson'," 
that  they  felt  "some  degree  of  surprise,  after  that  very  careful 
and  well-reasoned  judgment,"  in  Hale  v.  Hak,  "that  encourage- 
ment should  have  been  given  to  the  appellant  to  bring  this  ques- 
tion" to  the  House  of  Lords;  and  that  "no  authority  less  than 
the  Legislature  can  alter  it."  This  case  lays  any  doubts  as 
to  the  true  rule.  The  remarkable  thing  is  that  such  doubts 
should  have  been  entertained  by  so  many  learned  persons.1 

§  386.  If  there  is  no  original  gift  to  a  class  to  be  ascertained 
at  too  remote  a  period,  but  the  original  gift  is  to  a  class  which 
can  be  ascertained  within  the  required  limits,  and  there  is  then 
a  substitutionary  clause  which  may  take  effect  beyond  those 
limits,  the  original  gift  is  good,  and  the  substitution  is  bad; 
and  the  courts  have  shown  themselves  astute  to  construe  gifts 
to  issue  as  substitutional,  and  thus  preserve  the  gifts  to  the 
parents.2 

§  387.  In  Packer  v.  Scott 3  a  testatrix  bequeathed  her  per- 
sonal property  in  trust  when  and  as  the  child  or  children  of 
her  niece  should  severally  attain  twenty-one  years,  to  pay  and 
divide  it  equally  between  them  and  the  child  or  children  of 
such  of  them  (if  any)  as  might  die  under  twenty-one  years,  but 
so  as,  nevertheless,  that  the  child,  or  the  children  collectively, 
of  any  deceased  child,  on  their  severally  attaining  twenty-one 
years,  should  take  between  them,  equally,  such  share  only  as 
his,  her,  or  their  parent  would  have  taken  if  living;  and  the 
will  directed  that  so  long  as  any  child  or  children  of  the  niece, 

1  See  50  L.  T.  255;  67  L.  T.  R.  391.    See  Re  Watkins,  37  W.  R. 

432;  69  L.  T.  205;  Webster  v.  Parr,  609.    Cf.  Andrews  ».  Rice,  53  Conn. 

26  Beav.  236.    The  case  has  been  566,  under  the  Connecticut  statute, 
followed  in  Blight  v.  Hartnoll,  19  2  Marsden,  Perp.  94-98.  1  Jarm. 

Ch.  D.  294,  Re  Dawson,  39  Ch.  Wills  (6th  ed.)  333. 
D.  155,  and  Re  Whitten,  62  L.  T.          »  33  Beav.  511. 


LIMITATIONS  TO   CLASSES.  341 

or  any  descendant  of  such  child  or  children,  should  be  under 
twenty-one  years,  and  the  niece  should  be  living,  the  income 
arising  from  the  share  or  shares  to  which  such  child  or  children 
or  descendant  thereof  should  be  presumptively  entitled  should 
be  paid  to  the  niece,  to  be  applied  by  her  for  their  maintenance. 
The  testatrix  authorized  the  trustees  to  advance  any  sum,  not 
exceeding  £100  for  each  such  child  or  descendant  of  a  child,  by 
and  out  of  their  shares  for  their  advancement,  and  directed,  if 
the  niece  should  die  before  the  shares  were  payable,  that  the 
trustees  should  apply  the  income  towards  the  maintenance  of 
the  persons  respectively  who  might  then  be  presumptively 
entitled  thereto.  Sir  John  Romilly,  M.  R.,  said  in  his  opinion, 
which  is  briefly  reported  in  33  Beavan,  and  apparently  nowhere 
else:  "I  should  be  striking  words  out  of  this  will  if  I  held  that 
the  payment  or  division  could  be  postponed  until  the  children 
of  a  deceased  child  of  the  niece  attained  twenty-one;  for  the 
attainment  by  a  child  of  the  niece  of  the  age  of  twenty-one 
is  stated  to  be  the  period  at  which  the  gift  is  to  take  effect." 
But  suppose  that  all  the  children  of  the  niece  had  died  under 
twenty-one,  could  a  division  be  made  until  at  least  some  one 
grandchild  reached  twenty-one?  This,  however,  might  be  be- 
yond the  limits  fixed  by  the  Rule  against  Perpetuities.  The 
decision  seems  highly  questionable.1 

§  388.  In  Goodier  v.  Johnson 2  a  testator  directed  his  trus- 
tees, after  the  death  of  the  longest  liver  of  his  daughter  M., 
his  son  W.,  and  any  widow  his  son  might  leave,  to  sell  his 
real  estate  and  hold  the  proceeds,  and,  until  sale,  the  rents  and 
profits,  in  trust  to  pay  and  apply  them  "unto  and  equally 
amongst  all  and  every  the  child  and  children  of"  W.  and  M., 
"share  and  share  alike,  and  the  lawful  issue  of  such  of  them 
as  may  be  then  dead  leaving  issue,  such  issue  to  be  entitled 
to  no  more  than  then-  parent  or  respective  parents  would  have 
been  if  living."  He  also  directed  that  if  the  son,  then  living, 
of  M.  should  die  without  leaving  issue,  or  leaving  issue  and 

1  See  1  Jann.  Wills   (6th  ed.)          »  18  Ch.  D.  441. 
333,  note  (I). 


342  THE  RULE  AGAINST  PERPETUITIES. 

all  of  them  should  die  under  age  and  unmarried,  then  the 
share  of  money  which  would  have  been  payable  to  him  under 
the  aforesaid  trusts  should  be  paid  over  to  X.,  and  also  that 
if  W.  should  die  without  leaving  any  issue,  or  leaving  any 
all  of  them  should  die  under  age  and  unmarried,  then  the 
share  which  would  have  been  payable  to  the  children  of  W. 
under  the  trusts  aforesaid  should  be  paid  over.  The  Court 
of  Appeal  held  that  although  the  trust  for  sale  might  be  bad,1 
as  it  was  not  to  take  effect  until  the  death  of  the  son's  widow, 
who  might  not  have  been  born  in  the  testator's  lifetime,  yet 
that  the  right  to  the  property  was  in  all  the  children  of  W. 
and  of  M.,  and  not  merely  in  those  who  should  be  living  at  the 
death  of  the  son's  widow,  and  the  issue  of  those  who  had  then 
deceased;  in  other  words,  that  the  children  had  vested  inter- 
ests, which  on  their  death  without  issue  would  pass  to  their 
representatives;  that  the  gift  to  the  issue  of  such  as  should 
then  be  dead  leaving  issue  was  substitutional,  although  there 
was  here  "a  difficulty,  the  words  used  not  being  appropriate 
to  a  clause  of  substitution,"  2  and  was  bad  as  being  too  remote, 
leaving  the  gifts  to  the  children  indefeasible.  The  decision  is 
near  the  line.3 

§  389.  Independent  Gifts.  —  When  gifts  are  made  to  sev- 
eral persons  by  one  description,  but  the  amount  of  the  gift  to 
one  is  not  affected  by  the  existence  or  non-existence  of  the 
others,  then  the  gifts  are  separable.  Thus  if  the  testator 
gives  £1,500  to  each  one  of  X.'s  children  who  reaches  twenty- 
five,  each  child  born  before  the  testator's  death  will,  upon  reach- 

1  On  this  see  §§  509  a,  et  seq.,  in  which  gifts  to  classes  have  been 

post.  held  too  remote  will  be  found  in 

1  Per  Jessel,  M.  R.,  p.  446.  Mareden,  Perp.  107-111. 

1  See  Speakman  v.  Speakman,  8  On  the  question  how  far  the 

Hare,  180;  Taylor  v.  Frobisher,  5  Rule  against  Perpetuities  has 

De  G.  &  8m.  191;  Gooch  v.  Gooch,  affected  or  ought  to  affect  the  ap- 

3  De  G.  M.  &  G.  366;  Baldwin  v.  plication  of  rules  of  construction 

Rogers,  Id.  649.  Cf.  Goodier  v.  to  the  time  for  determining  a  class, 

Edmunds,  [1893]  3  Ch.  455.  see  §§  634  et  seq.,  post. 

A  useful  list  of  the  English  cases 


LIMITATIONS   TO   CLASSES. 


343 


ing  twenty-five,  take  the  legacy,  although  those  born  after  will 
not.  Boughton  v.  James.1  Storrs  v.  Benbow.2  And  again, 
although  the  amount  of  each  legacy  is  dependent  upon  the 
number  of  legatees,  yet  if  this  number  must  be  determined 
within  the  required  limits  the  gifts  are  separable.  Thus  if  a 
fund  is  given  to  be  divided  into  as  many  shares  as  there  are 
children  of  A.  who  survive  A.,  one  share  to  be  paid  to  each 
child  for  life,  and  on  his  death  to  its  children,  the  children  of 
those  children  of  A.  who  were  born  in  the  testator's  life  will 
take  the  share  in  which  their  parent  had  a  life  interest,  while 
the  children  of  such  children  of  A.  as  were  not  born  until  after 
the  testator's  death  will  take  nothing.3 

1  1  Coll.  26.    The  report  of  this      1076;  28  L.  J.  Ch.  95.    (See  4  Jur. 


case  in  Collyer's  Reports  does  not 
show  that  the  point  was  so  decided, 
but  it  appears  from  the  report  of 
the  case  on  appeal.  Boughton  v. 
Boughton,  1  H.  L.  C.  406,  414. 

*  3  De  G.  M.  &  G.  390.  In  this 
case  a  testator  directed  his  execu- 
tors to  pay  £500  apiece  to  each 
child  that  might  be  born  to  either 
of  the  children  of  either  of  his 
brothers.  Lord  Cranworth,  C., 
held  that  a  grandchild  of  a  brother 
of  the  testator,  which  grandchild 
was  living  at  the  testator's  death, 
was  entitled  to  his  legacy.  Unless 
the  gift  was  to  be  confined  to  such 
grandchildren  as  had  been  born  at 
the  testator's  death  (as  Sir  John 
Leach,  M.  R.,  thought,  Storrs  v. 
Benbow,  2  Myl.  &  K.  46),  it  would 
seem  that  all  the  grandchildren 
whose  parents  had  been  born  at 
the  date  of  the  testator's  death 
ought  to  take.  See  Blandford  v. 
Thackerell,  2  Ves.  Jr.  238,  com- 
mented on  in  Leake  v.  Robinson,  2 
Mer.  363,  392. 

1  Griffith  v.  Pownall,  13  Sim. 
393.  Cattlin  v.  Brown,  11  Hare, 
372.  Wilson  v.  Wilson,  4  Jur.  N.  s. 


N.  s.  pt.  2,  497,  512,  520.)  Wil- 
kinson v.  Duncan,  30  Beav.  Ill 
(§  523  c,  post).  Knapping  v.  Tom- 
linson,  34  L.  J.  Ch.  3;  10  Jur.  N.  s. 
626.  Von  Brockdorff  v.  Malcolm, 
30  Ch.  D.  172.  In  re  Coulman,  Id. 
186  (§  523 /,  post).  Bell  v.  Bell,  13 
Ir.  Ch.  517.  M'Donald  v.  Jones, 
40  Nov.  Sc.  232.  Lupton  v.  Elliott, 
11  N.  S.  Wales  L.  R.  Eq.  87.  See 
Bentinck  v.  Portland,  7  Ch.  D.  693, 
700;  Fonseca  v.  Jones,  21  Mani- 
toba, 168,  189.  Cf.  Cromek  v. 
Lumb,  3  Y.  &  C.  565;  Sumner  t>. 
Westcott,  86  Conn.  217.  The  case 
of  Arnold  v.  Congreve,  1  Russ.  & 
M.  209,  §  424,  post,  is  contrary  to 
the  later  authorities,  and  must  be 
considered  as  not  correctly  stating 
the  law.  See  Knapping  v.  Tomlin- 
son,  ubi  sup.  Re  Phillips,  28  Ont. 
L.  R.  94,  seems  to  be  a  case  where 
the  same  doctrine  should  have  been 
applied. 

On  the  treatment  of  restraints 
on  the  alienation  of  estates  in  con- 
nection with  the  Rule  against  Per- 
petuities, when  the  estates  are  in- 
dependent, see  §§  432-441,  post. 


344  THE   RULE   AGAINST   PERPETUITIES. 

§  391.  The  case  of  Greenwood  v.  Roberts  1  has  been  much 
discussed.  There  was  a  bequest  to  A.  for  life,  and  on  his 
death  to  such  of  his  children  as  might  be  then  living,  in  equal 
shares,  for  their  respective  lives,  and  on  the  death  of  any  of 
them  its  share  of  the  principal  to  be  divided  among  its  chil- 
dren when  they  should  become  of  age;  and  the  testator  further 
directed  that  if  any  of  A.'s  children  should  at  A.'s  decease  be 
dead  and  have  left  issue,  such  issue  should  be  entitled  to  the 
share  of  the  principal  to  which  their  parent  would  have  been 
entitled  had  he  survived  A.  A.  had  children  born  in  the  tes- 
tator's lifetime.  Sir  John  Romilly,  M.  R.,  held  that  the  gifts 
to  the  children  of  those  children  of  A.  who  were  born  before 
the  testator's  death  were  not  separable  from  the  gifts  to  the 
children  of  those  children  of  A.  who  were  not  born  till  after 
the  testator's  death,  and  that  therefore  none  of  the  grand- 
children of  A.  could  take  any  share.  He  said  the  gift  was 
"distinctly  to  a  class."  In  Cattlin  v.  Brown2  Wood,  V.  C., 
approved  the  decision  in  Greenwood  v.  Roberts,  on  the  ground 
that  the  children  of  A.  in  esse  at  the  testator's  death  might 
all  die  before  A.;  but  surely  that  circumstance  is  immaterial, 
—  the  important  matter  is  that  the  shares  must  be  definitely 
fixed  at  the  death  of  A.;  and,  as  is  pointed  out  by  a  writer  in 
the  Jurist,3  and  by  Kindersley,  V.  C.,  in  Knapping  v.  Tomlin- 
son,4  the  reason  given  and  approved  by  Wood,  V.  C.,  as  the 
ground  for  the  decision  in  Greenwood  v.  Roberts,  would  have 
required  him  to  decide  Cattlin  v.  Brown  precisely  contrary  to 
what  he  did.  In  Webster  v.  Boddington*  Sir  John  Romilly, 
M.  R.,  defended  Greenwood  v.  Roberts  on  a  ground  which  is 
not  suggested  in  the  original  opinion.  He  said  the  time  for 
determining  the  shares  was  not  when  A.  died,  nor  when  his 
children  reached  twenty-one,  but  when  a  class  composed  of 
all  the  children  of  A.  who  reached  twenty-one,  and  also  of  all 
the  children  who  reached  twenty-one  of  children  of  A.  who 

1  15  Beav.  92.  «  34  L.  J.  Ch.  3. 

«  11  Hare,  372.  8  26  Beav.  128. 

»  4  Jur.  N.  s.  pt.  2,  512,  520. 


LIMITATIONS   TO   CLASSES.  345 

died  before  reaching  twenty-one,  reached  twenty-one,  and 
that  as  this  might  not  happen  till  beyond  the  required  limits 
the  whole  gift  was  too  remote.  It  is  hard  to  see  how  such 
a  construction  could  be  put  on  the  will,  but  on  such  a  con- 
struction of  course  the  decision  was  correct.1  The  cases  cited 
in  §  389,  ante,  as  well  as  the  reason  of  the  thing,  show  that 
when,  on  a  gift  to  a  class,  the  number  of  the  shares  is  definitely 
fixed  within  the  time  required  by  the  Rule  against  Perpetuities, 
the  question  of  remoteness  is  to  be  considered  with  reference 
to  each  share  separately. 

§  392.  There  are  cases  in  theTJnited  States  to  the  same  effect. 
In  Lowry  v.  Muldrow 2  there  was  a  devise  to  A.  for  life,  remain- 
der to  his  children  for  life,  the  share  of  each  child  to  go  to  its 
children  in  fee.  All  of  A.'s  children  were  in  fact  born  at  the 
death  of  the  testator.  It  was  held  that  the  limitation  to  their 
children  was  not  too  remote.  In  Hills  v.  Simonds 3  there  was 
a  devise  to  the  children  of  the  testator's  brothers  and  sisters 
for  life  in  equal  shares,  and  after  the  death  of  each  its  share  to 
go  to  its  children  or  legal  representatives.  The  testator's 
brothers  and  sisters  were  living  at  his  death.  It  was  held  that 
the  gift  to  the  children  or  legal  representatives  of  such  of  the 
children  of  the  testator's  brothers  and  sisters  as  were,  hi  fact, 
born  in  his  lifetime  was  not  too  remote.4 

§  393.  In  two  cases,  however,  in  Massachusetts  the  princi- 
ple was  overlooked.  In  Sears  v.  Russell 5  property  was  devised 
in  trust  for  the  testator's  daughter  A.  for  life,  and  on  her 
death  for  her  children  and  their  heirs  in  equal  shares;  but  if 
any  of  A.'s  children  should  die  after  her,  but  in  the  lifetime  of 
any  husband  of  hers,  without  issue,  then  the  share  of  such 
child  should  go  to  the  testator's  heirs.  A.  survived  the  testator, 

1  Besides  the  case  of  Knapping  *  8  Rich.  Eq.  241. 

v.  Tomlinson  and  the  letters  in  the  *  125  Mass.  536. 

Jurist,    mentioned    above,    Green-  *  So   also  Albert   v.  Albert,  68 

wood  v.  Roberts  is  discussed  hi  Bell  Md.  352.     See  Pleasants  v.  Pleas- 

v.  Bell,  13  Ir.  Ch.  517;  Mareden,  ants,  2  Call,  319,  338. 
Perp.  285-286;  1  Jarm.  Wills  (6th  •  8  Gray,  86. 

ed.)  335-338. 


346  THE  BULB   AGAINST  PERPETUITIES. 

and  died  leaving  two  children,  one  of  whom  was  bora  before  the 
testator's  death.  The  Court  held  (1)  that  dying  without  issue 
referred  to  a  definite  failure  of  issue;  (2)  that  the  gift  over  to 
the  testator's  heirs  should  be  construed  to  be  to  those  who 
should  then  be  the  testator's  heirs,  and  was  therefore  contin- 
gent; and  (3)  that  as  the  contingency  might  occur  at  any  time 
in  the  lifetime  of  any  husband  of  A.,  and  as  such  husband 
might  not  be  bom  at  the  death  of  the  testator,  the  whole  gift 
over  was  too  remote.  But  as  the  shares  of  A.'s  children  must 
have  been  fixed  definitely  at  her  death,  and  as  the  fate  of  one 
did  not  in  any  way  affect  that  of  the  others,  they  might  and 
ought  to  have  been  considered  separately;  and  therefore  the 
gift  over  of  the  share  of  that  child  of  A.  who  was  born  in  the 
testator's  lifetime,  upon  the  death  of  such  child  without  issue, 
was  good. 

§  394.  In  Levering  v.  Lovering  l  land  was  devised  to  trus- 
tees in  trust  to  pay  the  rents  to  the  testator's  daughter  Nancy 
for  life,  and  on  her  death  to  her  children  during  their  lives. 
"And  as  the  children  of  said  Nancy  shall  successively  decease," 
the  land  or  its  proceeds  to  be  conveyed  in  fee  or  paid  "to  and 
among  the  heirs  at  law  of  all  the  children  of  said  Nancy,  that 
is  to  say,  that  as  said  Nancy's  children  shall  successively  de- 
cease, a  proportion  of  said  estate,  or  the  proceeds,  are  to  be 
conveyed  or  distributed  to  and  among  the  respective  heirs  at 
law  of  each  child  so  deceasing,  said  Nancy's  grandchildren  to 
take  in  right  of  representation  of  their  deceased  parents." 
Nancy's  children  were  in  fact  all  born  in  the  lifetime  of  the 
testator.  The  Court  say:  "It  is  conceded  that,  if  the  devise  of 
life  estates  to  the  children  of"  Nancy  "would  include  children 
born  after  the  death  of  the  testator,  the  limitation  over  to  the 
heirs  of  such  children  is  void  for  remoteness."  And  the  Court 
decided,  undoubtedly  quite  correctly,  that  the  devise  did 
include  after-born  children.  But  this  concession  should  not 
have  been  made.  The  gifts  to  the  heirs  of  Nancy's  children 
were  not  too  remote.  The  shares  must  have  been  determined 

1  129  Mass.  97. 


LIMITATIONS  TO   CLASSES.  347 

at  her  death.  The  heirs  of  each  child  took  her  share,  and  only 
her  share.  Nothing  after  the  death  of  Nancy  in  any  way 
affected  the  amount  of  any  share.  The  question  of  remoteness 
was  to  be  considered  with  regard  to  each  share  separately, 
and  as  the  children  of  Nancy  were  all  alive  at  the  testator's 
death,  their  heirs  were  entitled  to  their  shares.  But  the  rights 
of  the  heirs  were  "conceded"  away.1 

§  394  a.  But  in  Dorr  v.  Lovering 2  the  same  will  was  again 
before  the  Court.  Another  child  of  Nancy  had  died.  The  Court 
now  held  that  the  gift  to  its  heirs  was  not  too  remote.  Mor- 
ton, C.  J.,  who  had  delivered  the  opinions  of  the  Court  in 
both  Hills  v.  Simonds  and  Lovering  v.  Lovering,  again  wrote 
the  opinion.  He  recognized  the  error  into  which  the  Court 
had  fallen  in  Lovering  v.  Lovering,  and  reaffirmed  the  correct 
doctrine  as  to  independent  gifts  which  had  been  laid  down  in 
Hills  v.  Simonds.3 

§  395.  The  same  mistake  into  which  the  Massachusetts 
court  fell  in  Sears  v.  Russell  and  Lovering  v.  Lovering  was  made 
by  the  Supreme  Court  of  Pennsylvania  in  Smith's  Appeal.4  In 
that  case  property  was  devised  by  A.  in  trust  to  pay  the  income 
to  B.  for  life,  and  after  her  death  as  she  should  by  will  appoint. 
B.  by  her  will  appointed  that  the  income  should  be  divided 
among  her  children,  then  living,  for  life,  and  that  "after  their 
several  and  respective  deaths"  the  share  of  the  principal  pro- 
ducing the  income  of  the  one  dying  should  be  transferred  to 
such  person  or  persons  as  he  or  she  should  by  will  appoint, 

1  Mr.  Crocker,  in  his  Notes  on  ter  drawn  to  their  attention  until 
Common  Forms  (3d  ed.)  437,  438,  after  the  case  had  been  decided, 
Bays  that  in  Lovering  v.  Lovering  altered  an  opinion  previously  writ- 
"the   rule  laid   down   in   Hills   v.  ten  so  as  to  say,  'It  is  conceded,'" 
Simonds  appears  to  have  been  ig-  etc.,   "thus  endeavoring  to   avoid 
nored,  the  opinions  in  both  cases  making  a  decision  that  should  con- 
being  given  by  the  same  judge;  it  tradict  the  earlier  one." 
is    understood,    however,    that    in  *  147  Mass.  530. 
Lovering  v.  Lovering  the  counsel  *  And  so  in  Minot  v.  Doggett, 
failed  to  suggest  to  the  court  the  190  Mass.  435.    Cf.  Reed  v.  Mcll- 
point  decided  in  Hills  v.  Simonds,  vain,  113  Md.  140;  §  245  A,  ante. 
and  the  court,  not  having  the  mat-  *  88  Pa.  492. 


348  THE   RULE   AGAINST  PERPETUITIES. 

and  in  default  of  such  appointment  over.  B.'s  children  were 
all  born  at  A.'s  death.  It  was  held  that  the  appointment  by 
B.  was  "wholly  void."  But  the  appointment  to  B.'s  children 
was  good,  because  their  interest  took  effect  at  her  death; l  any 
as  their  shares  were  then  made  separate  and  independent,  thed 
were  to  be  treated  separately,  and  the  gifts  over  of  the  shares 
of  those  who  were  born  before  A.'s  death  were  good;  and  as 
they  were  all  born  before  A.'s  death,  the  gifts  over  of  all  the 
shares  were  good.2 

§  395  a.  In  Thomas  v.  Gregg3  A.  by  will  gave  his  daughter 
B.  a  power  to  appoint  by  will  to  one  or  more  of  her  issue  in 
equal  shares.  The  daughter  appointed  to  her  children  in  equal 
shares,  but  directed  that  the  property  should  be  held  by  trustees 
and  the  income  of  its  share  paid  to  each  child  during  its  life. 
At  her  death  she  had  three  children,  two  of  whom  were  born  in 
the  lifetime  of  A.  The  Court  held  that  the  appointment  to  the 
child  who  was  not  born  in  A.'s  lifetime  was  bad  for  remoteness, 
and  that  therefore  the  appointments  to  the  other  children  were 
bad  also.  This  seems  a  double  error.4 

§  396.  There  are  two  or  three  other  cases  in  the  United 
States  on  gifts  to  classes  which  call  for  attention.  In  Moore  v. 
Moore 6  a  testator  directed  that  his  property  should  be  kept  by 
his  executor  as  a  fund,  and  added:  " Should  any  of  my  chil- 
dren, or  grandchildren,  come  to  suffering,  in  any  other  way, 
save  by  idleness,  drunkenness,  or  anything  of  the  kind,  so  as  to 
become  an  object  of  charity,  I  want  the  said  executor  to  give  a 
part  of  this  to  such  child  or  grandchild."  The  provision  was 
held  void.  In  order  that  any  child  or  grandchild  should  take  an 

1  See  §  239,  ante.  would    seem,    in     United    States 

1  This  ruling  was  also  bad  for  Fidelity  Co.  v.  Douglas'   Trustee, 

another  reason.     See  §§  523-523  b,  134  Ky.  374,  396.    Cf.  Lawrence  v. 

post.    Cf.  also  Stephens  v.  Evans,  Smith,  163  111.  149,  stated  §§  249  e- 

30  Ind.  39.    In  Stout  v.  Stout,  44  249  g,  ante. 

N.  J.  Eq.  479,  Bird,   V.    C.,   fell  »  76  Md.  169. 

into  the  same  error  as  was  made          4  See    §  245  c    (6),    ante.      Cf. 

in    the    cases   stated,   §§  393-395,  Hillen  v.  Iselin,  144  N.  Y.  365. 

ante;  and  the  like  was  done,   it          •  6  Jones,  Eq.  132. 


LIMITATIONS  TO   CLASSES.  349 

interest  it  must  come  to  suffering;  this,  in  the  case  of  a  grand- 
child, might  be  beyond  the  required  limits.  The  grandchildren 
formed  one  class  with  the  children;  the  share  of  each  beneficiary 
might  depend  upon  the  number  of  beneficiaries;  this  might 
not  be  determined  till  a  remote  time.  Consequently  the  whole 
gift  was  too  remote.  The  decision  therefore  seems  correct.1 

§  397.  In  Goldsborough  v.  Martin 2  property  was  devised 
to  a  trustee  in  trust  to  pay  the  income  to  H.,  or  to  use  it,  in 
the  discretion  of  the  parties,  for  the  support  and  maintenance 
of  H.;  and  in  case  H.  should  die  leaving  issue,  "the  trust 
hereby  created  shall  extend  to  and  be  executed  for  said  issue 
in  the  same  manner  as  directed  for  and  on  behalf  of"  H. 
The  Court  held  that  "issue"  embraced  all  the  lineal  descend- 
ants of  H.,  and  that  the  trust  was  therefore  void.  Such  a 
gift  would  certainly  be  too  remote.  But  to  hold  that  all  the 
issue  of  H.  would  have  taken  appears  to  have  been  erroneous. 
The  issue  took  as  purchasers,  and  the  gift  to  them  did  not 
include  any  persons  who  were  born  after  the  interest  vested 
in  possession.3  There  would  seem,  therefore,  to  have  been 
here  a  good  gift  either  of  an  equitable  fee  or  an  equitable 
life  estate  to  those  issue  of  H.  who  were  in  esse  at  her  death.4 

§  398.  So  in  Caldwell  v.  Willis,6  where  there  was  a  bequest 
to  A.,  and  after  his  death  to  his  "child  or  children  then  living, 
and  the  descendants  of  such  child  or  children  and  their  heirs 
forever,"  the  Court,  having  reached  the  conclusion  that  the 
gift  was  to  all  descendants  to  the  remotest  generations  as  a 
class,  naturally  held  it  void  as  to  all;  but  the  construction 
put  on  the  bequest  seems  extraordinary,  and,  entirely  apart 
from  any  question  of  remoteness,  impossible  to  carry  out.6 

1  See  Angell  v.  Angell,  28  R.  I.      Hare,  580,  §  408,  post,  where  the 
592.  decision  turned  upon  the  construc- 

2  41  Md.  488.  tion  given  to  the  word  "family." 
»  See   Parker   v.  Churchill,  104  5  57  Miss.  555. 

Ga.  122.  8  In   connection  with   the  pre- 

4  See    Bronson    v.    Strouse,   57  ceding  sections,  and  on  the  ques- 

Conn.  147;  Woodbridge  v.  Winslow,  tion  how  far  a  series  constitutes  a 

170  Mass.  388.    Cf .  Liley  v.  Hey,  1  class,  see  the  following  chapter. 


350  THE  BULB  AGAINST  PERPETUITIES. 

§  398  a.  In  Bradford  v.  Griffin  l  A.,  seised  in  fee,  in  1844, 
conveyed  land  to  her  son  John  "for  life,  and  after  his  death  to 
the  issue  of  his  body,"  and,  in  1854,2  she  by  deed  conveyed  to 
him  and  his  heirs  "all  her  right,  title,  interest,  and  estate  and 
reversion"  in  the  land.  The  son  had  no  issue  at  the  date  of 
the  first  deed,  but  had  issue  who  were  living  at  the  date  of 
the  second  deed.  He  conveyed  the  land  to  the  plaintiff,  who 
contracted  to  sell  it  to  the  defendant.  The  defendant  objected 
to  the  title  and  the  plaintiff  brought  a  bill  for  specific  perform- 
ance. The  Court  below  said  that  the  first  conveyance  by 
A.,  being  by  deed  and  not  by  will,  the  son  took  an  estate  for 
life;  that  if  the  estates  to  his  issue  were  valid,  they  also  took 
estates  for  We;  that  Chancellor  Kent  had  said  that  a  limitation 
to  unborn  children  for  We  was  invalid,  and  that  if  this  was  good 
law,3  the  issue  here  took  nothing;  that  the  limitation  here 
was  "to  the  issue  of  his  body  forever,"  4  "that  is,  through  all 
time  to  come,  each  to  take  an  estate  for  life  only.  Such  a 
limitation  is  void  for  remoteness; "  that  the  consideration  was 
for  love  and  affection  and  this  would  not  raise  a  use  to  unborn 
issue;5  that  if  the  gift  to  the  issue  were  valid,  it  was  a  contingent 
remainder  and  so  continued  even  after  the  birth  of  children 
to  the  son,  and  was  destroyed  by  the  son's  life  estate  merging 
in  the  reversion  by  the  second  conveyance;  and  that  therefore 
the  son  could  convey  a  good  title.  The  Supreme  Court  held 
that  the  son  took  a  life  estate;  that  "a  long  line  of  decisions 
in  this  State"  hold  that  such  words  (as  issue)  are  too  remote  and 
indefinite  to  support  an  estate  in  lands,  where  such  words 
occur  in  a  deed  executed  prior  to  the  act  of  1853  ;6  that  the 

1  40  So.  Car.  468.  facts)  the  word  "forever"  did  not 

1  This   date  is  variously  given  occur  in  this  first  deed, 
in  the  case  as  1850,  1854,  and  1855,  •  Whatever  may  be  the  law  as 

but  1854  seems  to  be  correct.  to  a  bargain  and  sale,  uses  can  be 

1  It  is    not    good  law.     §  232,  raised  to  persons  not  in  esse  by  a 

ante.  covenant    to    stand    seised.     §  62, 

4  According     to  .  the    passages  ante. 

cited  in  the  opinion  of  the  Supreme  •  It  is  unnecessary  to  say  there 

Court   (there  is  no  statement  of  had  been  no  case  in  South  Carolina 


LIMITATIONS  TO   CLASSES.  351 

son  had  a  fee;  and  that  the  decree  below  should  be  affirmed. 
This  case  is  submitted  to  the  consideration  of  the  learned 
reader  without  comment. 

§  398  6.  In  Edgerly  v.  Barker1  a  testator  devised  the  residue 
of  his  estate  to  his  grandchildren  when  the  youngest  should 
reach  the  age  of  forty.  The  Court  held  that  the  devise  was 
contingent  and  as  it  stood  was  too  remote,  but  that  the  intent 
to  give  the  grandchildren  the  property  was  primary,  and  the 
intent  that  they  should  have  it  at  forty  was  only  secondary; 
that  the  latter  intent  should  be  sacrificed  to  the  former;  and 
that  this  should  be  done  by  giving  the  property  to  the  grand- 
children when  the  youngest  reached  twenty-one.  The  opinion, 
which  is  very  elaborate,  does  not  conceal  its  radical  departure 
from  the  law  as  previously  held.  The  vice  of  the  decision  seems 
to  be  that  it  substitutes  a  class  consisting  of  certain  persons  for 
the  class  consisting  of  other  persons  for  whom  the  testator 
provided.2 

laying    down    so    extraordinary    a  1  66  N.  H.  434. 

proposition.     The  statute  of  1853  2  This    case     is     discussed    at 

(No.  4159)   merely  declared  that  length  in  App.  G,  §§  857  et  seq.; 

"dying  without  issue"  should  be  and   see   Hussey  v.   Sargent,    116 

construed  a  definite  and  not  an  in-  Ky.  53,  70;  38  Am.  Law  Rev.  683, 

definite  failure  of  issue.  693. 


352  THE  BULE  AGAINST  PERPETUITIES. 


CHAPTER  XI. 
LIMITATIONS  TO  A  SERIES. 

§  399.  PROPERTY  is  sometimes  given  to,  or  in  trust  for, 
the  person  who,  from  time  to  time,  may  fill  a  certain  position, 
or  answer  a  certain  description.  Thus  chattels  may  be  given 
in  trust  to  pay  the  income  to  A.  during  his  life,  and  on  A.'s 
death  to  such  person  for  life  as  may  be,  from  time  to  time, 
the  owner  of  a  certain  estate.  Here  we  have  a  series  of  life 
interests  to  the  successive  owners,  beginning  with  the  death 
of  A.  and  continuing  indefinitely.  No  one  of  this  series,  ex- 
cept the  first,  can  take  effect,  for  every  owner,  except  the 
first,  may  not  become  owner  until  more  than  twenty-one  years 
after  a  life  in  being.  But  can  the  first  take?  It  is  certain 
that  his  interest  will  not  begin  at  too  remote  a  period,  for  it 
will  begin  at  the  death  of  A.  It  has  been  suggested  that  the 
whole  series  form  a  class,  and  that  unless  all  can  take,  none 
can  take.  But  the  reason  why  one  member  of  a  class  ordi- 
narily cannot  take,  where  the  gifts  to  other  members  are  too 
remote,  is  that  the  share  of  one  member  is  dependent  upon 
those  of  the  others,  and  so  long  as  the  shares  of  some  are  un- 
determined they  are  all  undetermined.  But  in  the  case  we 
are  now  considering,  the  gift  to  the  first  taker  is  entirely 
unaffected  by  the  question  whether  the  gifts  to  his  successors 
are  good  or  bad.  His  interest  is  affected  by  them  neither  in 
extent  nor  duration.1  There  seems  no  good  reason  why  the 

1  In    Mackworth    v.   Hinxman,  net   should   take   the   interest   for 

2  Keen,  658,  personalty  was  be-  life.     Sir  G.  died,  and  Sir  J.  suc- 

queathed  to  Sir  G.   A.,   Baronet,  ceeded  him  in  the  baronetcy.    Lord 

for  life,   and  after  his   death  for  Langdale  held,  "for  the  purpose  of 

the  person  on  whom  the  baronetcy  accomplishing  the  intention,"  that 

should  devolve,  so  that  each  baro-  Sir  J.  took  an  absolute  interest  in 


LIMITATIONS   TO  A   SERIES.  353 

first  one  of  the  series  should  not  take.  The  authorities  will 
now  be  examined. 

§  400.  Bacon  v.  Proctor.1  Land  was  devised  in  trust  to 
pay  the  rents  to,  or  for  the  benefit  of,  such  person  as  for  the 
tune  being  should  succeed  to  the  testator's  baronetcy,  to  the 
end  that  the  estate  might  be  continued  in  his  family,  and  be 
enjoyed  with  the  title,  so  long  as  the  rules  of  law  and  equity 
would  permit.  It  was  held  by  Graham,  B.,  sitting  for  the 
Master  of  the  Rolls,  that  the  testator's  son  and  heir  took  a 
life  estate.  Nothing  was  decided  as  to  the  subsequent  in- 
terests. Lord  St.  Leonards,  who  was  of  counsel  hi  the 
case,  says:  "This  decision  was  acquiesced  in  simply  because 
it  was  the  general  opinion  of  the  bar  that  it  could  not  be 
disturbed."  2 

§  401.  Deerhurst  v.  St.  Alhans; 3  s.  c.  sub  nom.  Tollemache  v. 
Coventry.4  Lord  V.,  having  a  peerage  in  tail  male,  bequeathed 
chattels  to  trustees  in  trust  for  A.,  who  was  his  son  and  heir 
apparent,  for  life,  and  on  A.'s  death  "for  such  person  as  shall 
from  time  to  time  be  Lord  V.;  it  being  my  will  and  intention" 
that  the  chattels  shall  "from  time  to  time  go  and  be  held  and 
enjoyed  with  the  title  of  the  family,  as  far  as  the  rules  of  law 
and  equity  will  permit."  A.  enjoyed  the  chattels,  and  died, 
leaving  a  son,  B.,  born  before  the  testator's  death,  who  enjoyed 
the  chattels  and  died,  leaving  a  son,  C.,  born  after  the  testator's 
death.  C.  afterwards  died.  The  question  was  whether  the 
representatives  of  B.  or  of  C.  were  entitled  to  the  chattels.  The 
case  was  elaborately  argued  before  Vice-Chancellor  Leach, 
who  held  that  as  B.  was  in  fact  born  at  the  testator's  death, 
the  rules  of  law  permitted  an  interest  to  be  given  to  C.,  and 

the  property.     Lord  St.  Leonards  l  T.  &  R.  31.    See  §  407  a,  note, 

questions  this  decision,   and  with  post. 

reason.    Ker  v.  Dungannon,  1  Dr.  2  Sugd.  Law  of  Prop.  341.    See 
&  W.  509,  537,  538.    Sugd.  Law  of  Lewis,  Perp.  470-473,  649;  Mars- 
Prop.  341,  note.    See  §  407  a,  note,  den,  Perp.  122. 
post.    As  to  the  cases  in  which  the  3  5  Mad.  232. 
existence  of  the  Rule  against  Per-  4  2  Cl.  &  F.  611;  8  Bligh,  N.  8. 
petuities  has  been  allowed  to  affect  547. 
construction,  see  Chap.  XIX.,  post. 


354  THE  RULE  AGAINST  PERPETUITIES. 

that  therefore  C.'s  representatives  were  entitled.1  An  appeal 
was  taken,  and  was  argued  before  Lord  Eldon,  C.,  who  never 
decided  it,  and  then  before  Lord  Lyndhurst,  C.,  who,  on  the 
day  of  his  quitting  office,  affirmed  the  decree,  without  giving 
any  reasons.2  An  appeal  was  taken  to  the  House  of  Lords, 
where,  by  Lord  Brougham  (no  other  law  lord  being  present), 
the  decree  was  reversed.3 

§402.  Two  questions  arise  on  this  much-discussed  case. 
1.  Did  C.  take?  2.  Did  B.  take? 

§  403.  1.  Did  C.  take?  Sir  John  Leach,  V.  C.,  held  that 
the  limitation  to  C.  was  good,  because  it  took  effect  on  the 
death  of  B.,  who  was  living  at  the  testator's  death.  But  the 
answer  to  this  is,  that  A.'s  successor  might  not  have  been  born 
in  the  lifetime  of  the  testator,  and  consequently  a  gift  on  the 
death  of  such  successor  might  not  have  taken  effect  within 
lives  and  twenty-one  years  after  the  testator's  death.4 

§  404.  Lord  Brougham  did  not  bring  this  out  very  clearly, 
but  seemed  to  prefer  to  rest  his  opinion  overruling  the  decree 
on  the  circumstance  that,  by  means  of  an  attainder,  it  might 
happen  that  after  A.  no  one  would  be  entitled  to  the  peerage 
for  centuries.  This  argument,  as  he  himself  admitted,6  is- 
suicidal,  for  it  destroys  B.'s  claim  equally  with  C.'s;  and  as 
Lord  St.  Leonards 6  points  out,  an  attainder,  "although  it  would 
operate  as  a  forfeiture  of  the  dignity,  could  not  render  the 
whole  trust  void  in  its  creation,  but  like  any  subsequent  acci- 
dent, it  would  affect  the  rights  of  the  parties."  But  while  the 
reasons  on  which  Lord  Brougham  mainly  rested  in  declaring 
against  any  right  of  C.  will  not  bear  close  examination,  the 

1  5  Mad.  232.  note  (e);  Sugd.  Law  of  Prop.  335, 

•  See  2  Cl.  &  F.  632.  note  (I). 

•  2  Cl.  &  F.  611;  8  Bligh,  N.  B.          «  See  8  Bligh,  N.  s.  566,  567? 
547.    See  Dungannon  v.  Smith,  12  Dungannon  c.  Smith,  12  Cl.  &  F. 
Cl.  &  F.  546,  630;  Sugd.  Law  of  546,   585,   620,    630,   634;   Lewis,. 
Prop.   335.     The   remarks   attrib-  Perp.  469,  note. 

uted  to  Lord  Lyndhuret  in  8  Bligh,  •  2  Cl.  &  F.  633. 

N.  B.  567,  are  a  mistake.    He  was          •  Sugd.  Law  of  Prop.  339. 

not  present,    See  12  Cl.  &  F.  555, 


LIMITATIONS  TO  A   SERIES.  355 

decision  on  this  point  seems  sound  and  in  full  accordance  with 
Dungannon  v.  Smith.1 

§  405.  2.  Did  B.  take?  Tottemache  v.  Coventry  has  been  re- 
garded as  deciding  that  B.  did  take.2  But  Mr.  Justice  Cresswell 
in  Dungannon  v.  Smith,3  and  Lord  St.  Leonards,4  point  out  that 
the  only  thing  decided  was  that  C.  was  not  entitled,  and 
indeed  that  Lord  Brougham's  reasoning  would  destroy  B.'s 
claim  equally  with  that  of  C.  As  has  just  been  said,  how- 
ever, the  invalidity  of  C.'s  claim  rests  upon  a  reason  which  is 
sounder  than  that  given  by  Lord  Brougham,  and  which  does 
not  apply  to  the  interest  of  B. 

§  406.  Why  should  not  B.  take  as  filling  the  character  of 
first  member  of  a  series,  the  Lords  V.  succeeding  A.?  The 
first  member  of  this  series  must  take  on  the  death  of  A.,  and 
therefore  at  not  too  remote  a  period,  although  the  second  and 
all  the  later  members  may  take  beyond  the  limits  fixed  by  the 
Rule  against  Perpetuities. 

§  407.  Ibbetson  v.  Ibbetson 5  and  Dungannon  v.  Smith 6  are 
not  opposed  to  this  view.  In  those  cases  there  was  a  gift  to  a 
person  who  might  first  come  into  existence  beyond  the  limits 
of  the  Rule.  In  Tollemache  v.  Coventry  there  was  a  gift  to  a 
series,  the  first  member  of  which,  if  the  series  began  at  all, 
must  take  within  the  required  time.  There  was  therefore  no 
reason  why  such  first  member  should  not  take.7 

§  407  a.  Did  B.  take  a  life  interest  or  absolutely?  When 
personalty  is  placed  in  trust  to  go  with  settled  land  "so  far 

1  12  Cl.  &  F.  546.     See  Sugd.  connection     with     Dungannon    v. 
Law   of   Prop.   339-342;    1   Jarm.  Smith,  is  discussed  in  Sugd.  Law 
Wills  (5th  ed.)  239-241.  of  Prop.  330-349.    And  see  Lewis, 

2  Dungannon  v.  Smith,  12  Cl.&F.  Perp.  466-470,  647-649,  654-656; 
546,593,608.  Lewis,  Perp.  647, 648.  Suppl.  49,  50;  1  Jarm.  Wills  (6th 

•  P.  566.     But  see  In  re  Hill,      ed.)  343-345;  Marsden,  Perp.  122, 
[1902]  1  Ch.  (C.  A.)  807,  812.  123;  Ker  v.  Dungannon,  1  Dr.  & 

4  Sugd.  Law  of  Prop.  333,  336.         W.  509,  536;  Dungannon  v.  Smith, 

•  10  Sim.  495;  5  Myl.  &  Cr.  26;      12  Cl.  &  F.  546  et  passim;  Montagu 
§  334,  ante.  v.  Inchiquin,  23  W.  R.  592;  In  re 

•  12  Cl.  &  F.  546;  §  335,  ante.          Exmouth,  23  Ch.   D.   158;  In  re 
1  Tollemache    v.    Coventry,    in      Johnston,  26  Ch.  D.  538. 


356  THE   RULE  AGAINST  PERPETUITIES. 

as  the  rules  of  law  or  equity  will  permit,"  every  one  who  takes 
a  life  estate  in  the  realty  takes  a  life  interest  in  the  personalty 
until  you  come  to  a  person  in  whom  vests  an  estate  tail  on  the 
realty;  such  a  person  takes  an  absolute  interest  in  the  person- 
alty. §  365,  ante.  In  Tollemache  v.  Coventry,  Lord  V.,  having 
a  peerage  in  tail  male,  bequeathed  chattels  in  trust  for  A.,  who 
was  his  son  and  heir  apparent,  for  life,  and  provided  that  on 
his  death  the  chattels  should  "from  time  to  time  go  and  be 
held  and  enjoyed  with  the  title  of  the  family  as  far  as  the  rules 
of  law  and  equity  will  permit."  The  person  who  after  the 
death  of  A.  held  and  enjoyed  the  title  held  it  in  tail  male, 
and  therefore,  in  analogy  to  the  above  cases,  it  would  seem 
that  he  had  an  absolute  interest  in  the  personalty.  A.  was 
also  tenant  in  tail  male,  it  is  true,  but  the  personalty  was 
expressly  limited  to  him  for  life.1 

§  407  6.  And  it  has  now  been  settled  in  In  re  Hill,2  where  a 
question  precisely  similar  to  that  in  Tollemache  v.  Coventry 
arose,  that  B.  took,  and  took  an  absolute  interest. 

§  408.  Liley  v.  Hey.3  A  testator  devised  land  to  trustees 
on  trust  to  receive  the  rents,  make  certain  annual  payments 
thereout,  and  apply  the  remainder,  if  any,  as  follows:  namely, 
on  every  December  1  "to  distribute  amongst  certain  families, 
according  to  their  circumstances,  as,  in  the  opinion  of  the  said 
trustees,  they  may  need  such  assistance,  whose  names  are 
hereinafter  mentioned:  viz."  A.,  B.,  [and  twenty-two  others]. 
Sir  James  Wigram,  V.  C.,  held,  first,  that  the  devise  was  not  for 
a  charity  within  the  Mortmain  Act;  secondly,  that  it  was  not 
void  for  uncertainty;  and  thirdly  (which  concerns  us  here),  that 
it  was  not  void  for  remoteness.  He  said:  "I  incline  strongly 
to  think  that,  upon  this  will,  the  persons  the  testator  has 
named  in  the  will  are  the  objects  of  his  bounty,  and  that  I 
should  only  be  following  the  testator's  direction,  in  putting 

1  The   decision    in    Mackworth  »  [1902]  1  Ch.  537;  [1902]  1  Ch. 

v.  Hinxman,  2  Keen,  658,  §  399,  note,       (C.  A.)  807. 
ante,  waa  therefore  probably  wrong.  *  1  Hare,  580. 

Cf.  Bacon  v.  Proctor,  T.  &  R.  31; 
§  400,  ante. 


LIMITATIONS  TO  A   SERIES.  357 

this  construction  upon  the  will.  But  if  that  were  not  so,  the 
cases  of  Barnes  v.  Patch,1  Cruwys  v.  Coleman,2  and  Grant  v. 
Lynam 3  are  authorities  that  the  Court  can  and  will  put  a  con- 
struction upon  the  word  'family/  where  it  may  be  reasonably 
done,  rather  than  that  a  devise  should  be  void.  This  view  of 
the  case  disposes  of  the  third  objection,  at  least  during  the 
lives  of  the  parties  named  in  the  will,  who,  under  a  construction 
to  be  put  upon  the  word  'family,'  might  claim  an  interest 
under  the  will,  immediately  upon  the  death  of  the  testator.  I 
admit  that  where  a  future  interest  in  an  estate  is  so  given, 
that  by  possibility  it  may  not  take  effect  in  possession  until  a 
period  more  remote  than  the  law  allows,  that  devise  may  be 
void  from  the  beginning,  as  tending  to  a  perpetuity.  But 
where  the  will  declares  that  objects  are  to  take  in  succession, 
there  is  no  reason  why  I  should  hold  the  will  void,  as  to  those 
objects  to  whom  an  interest  not  extending  beyond  their  own 
lives  is  given  immediately  at  the  testator's  death." 4 

§  408  a.  In  Dillon  v.  Reilly 6  a  testator  directed  the  income 
of  £400  to  be  paid  to  the  clergymen  attached  to  a  parish  at 
the  time  of  his  death  from  time  to  time  forever  therefrom,  on 
condition  of  the  celebration  of  masses.  Sullivan,  M.  R.,  ruled 
that  the  income  was  to  be  paid  to  the  clergymen  attached  to 
the  parish  at  the  time  of  the  testator's  death,  and  the  survi- 
vors and  survivor  of  them;  and  that  on  the  death  of  the  sur- 
vivor the  £400  should  fall  into  the  residue  of  the  testator's 
estate.6 

1  8  Ves.  604.  to  no  others.     The  case  is  com- 
9  Ves.  391.  mented  on  in  Dorrian  v.  Gilmore, 
4  Russ.  292.  15  L.  R.  Ir.  69,  and  Small  v.  Torley, 
Cf.  Goldsborough   v.    Martin,  25  L.  R.  Ir.  388.     In  the  latter 
§  397,  ante.  case  Porter,  M.  R.  (p.  398),  speak- 
Ir.  R.  10  Eq.  152.  ing  of  Dillon  v.  Reilly,  says,  "It  is 
It  is  doubtful  if  this  case  be-  plain,   then,    that   the   Master   of 
longs   here.     The   Master   of   the  the  Rolls  thought  the  words  'from 
Rolls  appears  to  have  treated  the  time   to   time   forever   therefrom' 
legacy  as  intended  for  the  clergy-  were  either  insensible  and  should 
men  attached  to  the  parish  at  the  be  rejected,  or  they  were  not  con- 
time  of  the  testator's  death,  and  nected  with  the  gift  as  a  condition 


358  THE  BULB  AGAINST  PERPETUITIES. 

§  409.  Wainman  v.  Field.1  A  testator  devised  freehold  land 
to  A.  for  life,  remainder  to  B.  for  life,  remainder  to  B.'s  first 
and  other  sons  successively  in  tail  male,  remainders  over;  and 
he  bequeathed  leaseholds  to  trustees  hi  trust  to  permit  the 
rents  to  be  taken  by  such  person  or  persons  as  should  for  the 
time  being  be  entitled  to  the  freehold  land  until  the  person  so 
entitled  for  the  time  being  should,  by  good  assurance,  become 
seised  of  the  said  land  hi  fee  simple  in  possession,  and  then  in 
trust  to  convey  to  such  person.  A.  entered  into  possession  of 
the  estate  and  died.  B.  brought  a  bill  praying  that  it  might 
be  declared  that  he  was  absolutely  entitled  to  the  leaseholds. 
Sir  W.  P.  Wood,  V.  C.,  held  (1)  that  B.  took  only  a  life  inter- 
est; (2)  that  the  bequest  to  the  person  who  should  first  be 
entitled  in  fee  simple  was  void,  following  Dungannon  v.  Smith; 
(3)  that  all  interests  beyond  the  Me  interest  of  B.  were  void. 
There  can  be  no  doubt  of  the  correctness  of  (1)  and  (2);  but 
as  to  (3),  it  seems  far  from  clear.  Here  was  a  gift  to  a  series, 
which  began  immediately,  on  the  testator's  death,  with  A.; 
then  came  B.,  then  the  successive  tenants  in  tail.  The  Vice- 
Chancellor  decided  that  the  gifts  to  A.  and  B.  were  good,  but 
it  would  seem  as  if  the  gift  to  the  first  tenant  in  tail  who  must 
take  on  B.'s  death  was  good  also.  It  is  submitted  that  on  this 
point  the  case  is  wrong.2 

§  410.  On  the  whole,  when  the  gift  to  .one  member  of  a 
series  is  unaffected  by  the  existence  or  non-existence  of  the 
gifts  to  the  other  members,  and  the  gift  to  such  member  must 
take  effect,  if  at  all,  within  the  limits  fixed  by  the  Rule  against 
Perpetuities,  such  gift,  on  reason  and  authority,  is  not  void  for 
remoteness.8 

precedent,  and  so  did  not  enlarge  Moore,  6  Jones,  Eq.  132;  Golds- 

the  previous  words;  and  it  can  only  borough  v.   Martin,   41   Md.   488; 

be  on  the  language  of  that  par-  Caldwell  v.  Willis,  57  Miss.  555; 

ticular  will  ...  that  he  held  a  lif e  §§  396-398,  ante. 

estate  and  no  more  to  be  created."  *  In  re  Hill,  [1902]  1  Ch.  537; 

1  Kay,  507.  [1902]  1  Ch.  (C.  A.)  807.  Cf.  In  re 

*  See  Meller  v.  Stanley,  2  De  G.  Wilmer's  Trusts,  [1903]  1  Ch.  874; 

J.  &  8.  183,  192;  and  cf.  Moore  v.  [1903]  2  Ch.  (C.  A.)  411. 


LIMITATIONS   TO   A   SERIES.  359 

§  410  a.  Suppose  property  is  devised  to  trustees  in  trust 
to  pay  the  income  to  a  class  of  persons  forever  (or  for  a  period 
exceeding  twenty-one  years).  If  there  be  no  requirement  as 
to  the  time  when  the  income  shall  be  paid,  as  it  may  not  be 
paid  over  till  a  too  remote  period,  the  whole  trust  is  void.  But 
suppose  there  is  a  direction  that  the  annual  income  shall  be 
paid  over  annually  to  those  who  on  a  certain  day  in  each  year 
answer  a  particular  description,  e.  g.  to  those  who  shall  then 
be  the  heirs  of  the  testator.  What  then?  Such  trust  is  clearly 
bad  as  a  whole.  Is  it  good  for  twenty-one  years? 

§  410  6.  In  Siedler  v.  Syms  1  the  testator  gave  shares  hi  a 
bank  in  trust  "during  the  corporate  existence  of  said  bank, 
either  under  its  present  charter  or  by  virtue  of  any  renewals 
or  extensions  thereof,  to  collect  the  dividends  upon  the  shares," 
and  upon  the  first  days  of  January  in  each  year  to  divide  them 
among  certain  of  the  persons  then  in  the  employ  of  the  bank. 
The  testator  died  in  1891;  the  charter  of  the  bank  had  origi- 
nally terminated  in  1885,  but  it  had  been  extended  to  1905. 
Stevens,  V.  C.,  held  that  the  testator  intended  the  trust  to  con- 
tinue during  any  further  renewal  and  that  the  trust  could  not  be 
split.2  He  then  added:  "In  the  present  case  the  court  would 
give  more  effect  to  the  testator's  intention  to  confer  a  benefit  on 
the  employes  (sic)  of  the  bank  of  which  he  had  been  so  long 
president,  if  it  declared  that  the  gift  was  good  not  only  for  the 
fourteen  years  subsequent  to  the  testator's  death  (during  which 
it  would  exist  under  its  present  charter), but  also  for  such  further 
period  as  would,  with  this  fourteen  years,  make  up  a  term  of 
twenty-one  years,  than  it  would  if  it  declared  that  the  gift  was 
valid  during  the  fourteen  years  only.  It  would  hardly  be  con- 
tended, however,  that  this  could  be  done.  If  it  could,  it  might, 
with  equal  propriety,  have  been  done  in  the  case  of  Detwiller 
v.  Hartman*  and  in  all  these  cases  in  which  the  testator  has 
attempted  to  create  a  trust  not  charitable,  to  continue  indefi- 
nitely or  for  a  period  beyond  the  legal  one." 

1  56  N.  J.  Eq.  275.  «  37  N.  J.  Eq.  347. 

*  As  to  this  see  Chap.  IX.,  ante. 


360  THE   RULE  AGAINST  PERPETUITIES. 

§  410  c.  But  ought  not  this  trust  to  have  been  held  good  for 
twenty-one  years?  It  was  a  trust  for  a  series  of  annual  pay- 
ments. The  first  twenty-one  payments  must  have  fallen  within 
a  period  of  twenty-one  years.  The  amount  of  each  payment 
and  its  distribution  were  in  no  way  affected  by  the  existence 
or  non-existence,  the  validity  or  invalidity,  of  any  subsequent 
payment.  In  Detwiller  v.  Hartman,  a  bequest  to  keep  the 
testator's  tomb  in  repair  and  to  employ  a  brass  band  to  play 
there  on  certain  days  forever  was  held  void,  but  this  is  to  be  sup- 
ported on  a  different  principle,  the  want  of  a  cestui  que  trust.1 

§  410  d.  The  decision  in  Siedkr  v.  Syms  seems  to  be  due  to 
the  error  which  we  have  so  often  seen  creeping  in,  the  failure  to 
bear  in  mind  that  the  purpose  of  the  Rule  against  Perpetuities 
is  to  prevent  the  creation  of  remote  future  interests,  not  to 
prevent  restraints  upon  the  alienation  of  present  interests.  It 
is  respectfully  submitted  that  the  law  is  correctly  given  in  §  410, 
supra. 

§  410  e.  It  is  a  great  satisfaction  to  the  author  that  the 
opinion  which  he  ventured  to  express  in  the  preceding  sections 
has  approved  itself  to  the  Supreme  Court  of  Alabama.  In 
Lyons  v.  Bradley 2  personal  property  was  bequeathed  in  trust; 
the  income  to  be  distributed  every  six  months  to  the  persons 
then  constituting  a  certain  class;  the  trust  to  exist  for  twenty- 
five  years,  when  the  principal  was  to  be  distributed  to  a  class 
to  be  then  determined.  The  Court  held  that  of  course  the  gift 
of  the  principal  was  bad,  but  they  also  held  that  the  semi- 
annual gifts  of  the  income  were  good  for  twenty-one  years.3 

1  See  15  Harv.  Law  Rev.  509;  »  Cf.  Fitchie  t>.  Brown,  211 U.  8. 

App.  H,  §§  894,  906,  poet.  321. 

1  168  Ala.  505. 


TRUSTS.  361 


CHAPTER  XII. 
TRUSTS. 

§  411.  THE  Rule  against  Perpetuities  applies  to  equitable  as 
well  as  to  legal  interests.1 

There  are  one  or  two  matters  which  arise  in  applying  the 
Rule  to  equitable  interests  which  deserve  attention. 

§  412.  The  mistaken  idea  that  a  trust  violates  the  Rule 
against  Perpetuities  because  it  is  to  last  indefinitely  has  been 
before  discussed,2  as  has  the  application  of  the  Rule  to  cases 
where  trustees  have  a  discretion  in  selecting  the  objects  to  be 
benefited  by  the  trust; 3  and  in  subsequent  chapters  will  be 
considered  trusts  in  connection  with  Estates  Tail,4  Powers,5 
and  Charities.6 

§  413.  When  an  estate  is  given  to  trustees,  but  it  is  possi- 
ble that  no  equitable  interest  under  it  may  arise  within  the 
limits  of  the  Rule  against  Perpetuities,  the  whole  trust  is  bad. 
Thus  when  a  term  for  a  thousand  years  was  given  to  trustees 
in  trust,  upon  the  alienation  of  the  estate  by  any  tenant  in 
tail,  to  raise  £5,000  out  of  the  estate  in  favor  of  certain  per- 
sons, the  trust  was  decreed  to  be  void.7  So  when  property  was 
given  upon  trusts  to  arise  when  a  gravel  pit  was  worked  out;  8 
or  upon  trusts  to  arise  when  a  parcel  of  land  could  be  sold  at 
a  certain  price; 9  or  when  mortgages  were  paid  off  out  of  rents.10 

1  §§  202,  322-328.     In    Speak-  «  Chap.  XVIII.,  post. 

man  v.  Speakman,  8  Hare,  180,  no  7  Mainwaring  v.  Baxter,  5  Ves. 

question  was  made  of  the  validity  458.   See  Hartson  v.  Elden,  50  N.  J. 

of   the  trusts   of    the  fifty    years  Eq.  522. 

term.    Some  of  them  were  clearly  8  Re  Wood,  [1894]  2   Ch.  310; 

bad.  [1894]  3  Ch.  (C.'A.)  381. 

2  §§  232-245  h,  ante.  •  Lawrence  v.  Lawrence,   4  W. 

*  §  246,  ante.  Austr.  L.  R.  27.     Cf.  Kennedy  v. 

*  Chap.  XIV.,  post.  Kennedy,  [1914]  A.  C.  215. 

*  Chap.  XV.,  post.  "  In  re  Bewick,  [1911]  1  Ch.  116. 


362  THE  RULE  AGAINST  PERPETUITIES. 

§  414.  When,  by  reason  of  an  equitable  interest  being  too 
remote,  there  is  a  legal  interest  vested  in  trustees,  without  any 
corresponding  equitable  interest,  there  is  a  resulting  trust  to 
the  heir  or  next  of  kin.1 

§  414  a.  Trustees  are  owners  of  the  legal  estate,  and,  being 
owners,  they  need  no  other  authority  or  power  to  enable  them 
to  convey  the  legal  estate.  The  object  of  creating  a  trust  to 
sell  property  or  of  giving  trustees  a  power  to  sell  is  to  require 
or  enable  them  to  destroy  the  equitable  estates  or  interests  of 
the  cestuis  que  trust  in  that  property  and  to  enable  the  pur- 
chaser to  acquire  not  only  the  legal  but  the  beneficial  interest. 
And  further,  from  the  point  of  view  of  the  old  or  of  the  new 
beneficial  estate  and  with  regard  to  the  validity  of  the  latter 
as  being  or  not  being  too  remote,  it  is  immaterial  whether  the 
authority  to  create  a  new  beneficial  interest  be  in  the  hands 
of  a  trustee  or  in  the  hands  of  a  stranger  to  the  trust.  With 
regard  to  the  beneficial  interests,  the  trustee  and  the  donee 
of  a  power  are  alike  third  persons.  Trusts  to  sell  and  powers 
in  trustees  to  sell  will  therefore  be  considered  hi  connection 
with  Powers.2 

1  See  §  327  a,  ante.  of  existing,  and  the  creation  of  new 
1  See  §§  487  et  seq.,  post.  "The  uses;  and  the  like  reason  appears 
Rule  against  Perpetuities  (as  is  well  to  hold  where  the  fee  simple  is 
shown  by  the  case  of  London  and  vested  in  trustees,  and  the  power 
South  Western  Railway  Company  to  be  executed  by  a  conveyance  of 
v.  Gomm,  20  Ch.  D.  562)  pro-  that  estate;  as,  for  example,  where 
hibits  the  creation  of  estates  or  in-  there  is  a  trust  to  divide  between 
terests  (whether  legal  or  equitable)  the  members  of  a  class,  and  the 
which  may  not  arise  until  after  the  trustees  are  empowered  to  sell  for 
period  denned  by  the  rule.  A  the  purpose  of  making  the  division: 
power  of  sale  which  is  to  come  into  see  Peters  v.  Lewes  and  East  Grin- 
operation  at  some  epoch  beyond  stead  Railway  Company,  18  Ch. 
that  period  offends  against  the  rule,  D.  429.  It  was,  therefore,  rightly 
because  it  would  enable  the  donee  admitted  at  the  bar  that  if  in  the 
of  the  power  to  vest  in  a  purchaser  present  case  there  had  been  a  power 
an  estate  in  fee  simple  after  the  ex-  instead  of  a  trust  for  sale,  that 
piration  of  the  prescribed  period.  power  would  have  been  invalid. 
This  is  obvious  where  the  power  There  is,  however,  no  substantial 
is  intended  to  operate  under  the  difference,  for  the  purpose  of  the 
Statute  of  Uses  by  the  revocation  rule  against  perpetuities,  between 


TRUSTS.  363 

§  415.  A  devise  contingent  on  the  payment  of  the  testa- 
tor's debts  is  too  remote,  for  it  is  uncertain  when  the  debts 
will  be  paid.  It  is  important  to  see  how  this  affects  gifts 
connected  with,  or  subject  to,  trusts  for  the  payment  of  debts. 
If  a  term  is  given  to  trustees  to  pay  debts,  and,  subject  to  the 
term,  the  property  is  devised  to  A.,  A.'s  estate  is  vested,  and 
like  all  vested  interests,  is  not  obnoxious  to  the  Rule  against 
Perpetuities.1  If,  however,  the  fee  is  given  to  trustees  to  pay 
debts,  and,  subject  to  the  payment  of  debts,  the  land  is  devised 
to  A.,  here,  at  law,  A.  has  an  executory  devise  which  is  bad 
for  remoteness.2  But,  in  equity,  the  trustees  are  regarded  as 
holding  in  trust  for  A.,  with  a  charge  for  the  payment  of 
debts,  so  that  A.  has  an  immediate  equitable  fee,  which  is,  of 
course,  not  too  remote.3 

§  416.  If  the  intention  is  clear  that  no  interest,  legal  or 
equitable,  is  to  vest  until  the  debts  are  paid,  then  any  such 
interest  will  be  too  remote.  But  it  would  require  the  most 
unmistakable  language  to  postpone  the  vesting  of  a  gift,  after 
a  trust  for  payment  of  debts,  until  the  debts  were  paid.4  As 

a  trust  for  sale  and  a  power  of  sale,  40.    Morgan  v.  Morgan,  20  R.  I. 

where  the  sale  is  intended  to  be  600.      Re  Mountain,  26  Ont.  L.  R. 

completed  by  a  conveyance  to  the  163.      Lewis,    Perp.    626-632.      2 

purchaser  of  the  legal  estate  vested  Fearne,  C.  R.  (Powell's  ed.)  282- 

in   the    trustees.      A   testator   or  299,  note.     1  Collect.  Jurid.  214. 

settlor  cannot  (as  I  think)  impose  1  Jarm.  Wills  (6th  ed.)  316,  368, 

an  obligation  to  sell  where  he  can-  Addenda,  cccvi.   §  676,  post.     On 

not  lawfully  confer  a  power  to  do  the  question  whether  trustees  to 

so;  or  escape  from  the  rule  against  pay  debts  take,  in  any  particular 

perpetuities     by    vesting    in    his  case,  the  fee  or  only  a  chattel  in- 

trustees  an  imperative  instead  of  terest,  see  Carter  v.  Barnardiston, 

a    discretionary    power    of    sale."  1  P.  Wms.  505,  509;  sub  nom.  Bar- 

Per  Stirling,  J.,  in  Goodier  v.  Ed-  nardiston  v.  Carter,  3  Bro.  P.  C. 

munds,  [1893]  3  Ch.  455,  460,  461.  (Toml.  ed.)  64;  2  Jarm.  Wills  (4th 

1  2  Lewis,  Perp.  622, 623.   Third  ed.)   296-299,   310-314;    (6th  ed.) 

Rep.  Real  Prop.  Comm.  35.  1384,    1839;    Hawkins,   Wills    (2d 

1  Lewis,    Perp.    623-638.      See  ed.)  187-189;  Lewin,  Trusts  (10th 

Bagshaw   v.   Spencer,    1    Ves.    Sr.  ed.)  228. 

142,  144;  Challis,  Real  Prop.  (3d          *  See  an  article  by  Mr.  Kales  on 

ed.)  259.    Cf.  §  37,  ante.  the  remoteness  of  limitations  "when 

1  Bacon  v.  Proctor,  T.  &  R.  31,  debts  are  paid,"  6  I1L  Law  Rev.  373. 


364  THE   RULE  AGAINST  PERPETUITIES. 

the  land  of  a  deceased  person  can  now  be  taken  for  his  debts 
in  England  as  well  as  in  America,  trusts  created  by  will  for 
the  payment  of  debts  are  not  so  necessary  nor  so  common  as 
formerly.  The  application  of  the  Rule  against  Perpetuities 
to  Mortgages  and  Sinking  Funds  is  considered  in  Chap.  XVI. 
post. 

§  417.  In  Massy  v.  O'Dell l  A.  conveyed  Blackacre  to  B. 
in  fee,  with  a  covenant  for  quiet  enjoyment  free  from  quit 
rent  and  Crown  rent,  and  on  the  same  day  conveyed  White- 
acre  to  trustees  in  trust  to  let  A.  take  the  rents  until  B.  and 
his  heirs  had  to  pay  quit  rent  and  Crown  rent  on  Blackacre, 
and  then  in  trust  to  raise  money  to  pay  off  those  charges, 
Smith,  M.  R.,  held  that  this  last  trust  was  not  too  remote. 
He  sustained  himself  by  citations  from  Lewis  on  Perpetuities,2 
to  the  effect  that  where  land  is  devised  to  trustees  for  the 
payment  of  debts,  the  persons  to  whom  the  land  is  given  after 
payment  of  debts  take  an  equitable  fee.  But  the  cases  do  not 
seem  analogous.  Where  land  is  devised  for  payment  of  debts, 
there  is  an  immediate  equitable  fee  in  favor  of  those  who  are  to 
take  subject  to  the  debts,  and  there  is  also  an  immediate  charge 
for  payment  of  the  debts;  but  in  Massy  v.  O'Dell,  while  there  was 
an  immediate  trust  in  favor  of  the  settlor,  the  trust  to  indem- 
nify B.  and  his  heirs  only  arose  if  he  or  they  were  subjected  to 
the  payment  of  rent,  which  might  first  happen  at  a  remote 
period.  It  is  submitted  that  Massy  v.  O'Dell  was  wrongly 
decided.  Lord  St.  Leonards  3  says:  "In  exchanges,  by  a  con- 
veyance operating  under  the  statute,  it  has  been  sometimes 
attempted,  in  case  of  eviction,  to  limit  the  other  estate  to  the 
uses  to  which  the  estate  evicted  should  stand  limited  at  the 
tune  of  the  eviction;  but  such  provisos  are  clearly  void  if 
considered  as  creating  shifting  uses,  because  they  are  too 
remote." 

§  418.  In  executing  an  executory  trust  the  Court  will  of 
course  avoid  limitations  which  run  counter  to  the  Rule  against 

>  10  IT.  Ch.  22.  »  Sugd.  Pow.  (8th  ed.)  44. 

»  Pp.  626,  631. 


TRUSTS.  365 

Perpetuities,  just  as  it  would  any  other  illegal  provisions.  The 
presumed  intention  of  the  testator  or  settlor  to  have  his  ar- 
rangements legal  and  valid  will  overrule  any  expressions  of 
a  contrary  tendency.1  If  the  main  object  of  an  executory  trust 
were  to  create  too  remote  limitations,  so  that  apart  from  such 
object  there  remained  nothing  substantial  to  carry  out,  it  is 
probable  that  the  whole  trust  would  fail,  although  there  is  no 
case  so  holding.2 

§  419.  This  seems  the  best  place  to  consider  Tregonwell  v. 
Sydenham,3  a  case  of  extraordinary  difficulty.  A  testator  gave 
his  X.  estate  to  his  only  son  A.  for  life,  remainder  to  A.'s  sons 
and  daughters  successively  in  tail,  with  remainders  over; 
and  his  Y.  estate  to  A.  for  life,  remainder  to  A.'s  sons  suc- 
cessively in  tail  male,  remainder  to  B.  for  life,  remainder  to 
B.'s  sons  successively  in  tail  male,  remainders  over.  The  Z. 
estate  he  devised  in  like  manner  as  the  Y.  estate,  except  that 
after  the  remainder  to  the  sons  of  A.  successively  in  tail  male, 
and  before  the  remainder  to  B.  for  life,  was  a  devise  to  trustees 
for  sixty  years  in  trust  to  receive  the  rents  and  profits,  until 
they  should  have  received  £17,500,  which  they  were  to  apply 
as  follows:  when  they  should  have  £2,500,  to  lay  out  the 
same,  with  any  interest  they  should  have  made  therefrom,  in 
land,  and  settle  the  land  on  such  person  for  life  as  should  then 
be  in  possession  of  the  X.  estate;  or  in  case,  by  suffering  a 
recovery  or  otherwise,  the  X.  estate  should  be  in  other  hands, 

1  On  the  mode  of  carrying  out  J.  &  H.  40,  51;  Lyddon  v.  Ellison, 

executory  trusts  so  as  to  avoid  the  19  Beav.  565;  Holmesdale  v.  West, 

objection  of  remoteness,  see  New-  L.  R.  3  Eq.  474;  sub  nom.  Sackville- 

castle  v.  Lincoln,  3  Ves.  Jr.  387;  West  v.  Homesdale,  L.  R.  4  H.  L. 

sub  nom.  Lincoln  v.  Newcastle,  12  543;  Shelley  v.  Shelley,  L.  R.  6  Eq. 

Ves.  218;  Dorchester  v.  Effingham,  540;  Harris  v.  Carruthers,  2  N.  S. 

10  Sim.  587,  note;  3  Beav.   180,  Wales  State  Rep.  100,  117;  Lewis, 

note;  Woolmore  v.  Burrows,  1  Sim.  Perp.   c.  27,  pp.   574-589;  Suppl. 

512;  Bankes  v.  Le  Despencer,   10  173,  204,  205;  Marsden,  Perp.  133- 

Sim.  576;  11  Sim.  508  (the  settle-  139;  3  Dav.  Prec.  Conv.  (3d  ed.) 

ment  in  this  case  is  given  more  601,  602;  §  365,  note,  ante. 

fully  in  7  Jur.  210;  Lewis,  Perp.  *  Lewis,  Perp.  584,  585. 

App.  32);  Scarsdale  v.  Curzon,   1  3  3  Dow,  194. 


366  THE   RULE  AGAINST  PERPETUITIES. 

then  on  such  person  as  would  have  been  in  possession  had 
such  recovery  or  other  proceeding  not  been  had;  and  so,  from 
time  to  time,  as  soon  and  as  often  as  the  further  sum  of  £2,500 
should  be  raised,  the  same  should  be  laid  out  and  settled  in 
like  manner,  with  such  remainder  that  on  each  of  said  settle- 
ments the  estates  should  be  so  settled  as  to  continue  in  the 
blood  of  the  S.'s;  and  after  raising  the  £17,500,  then  in  trust 
to  raise  and  apply  in  like  manner  £2,500  in  trust  to  be  settled 
in  like  manner  on  the  persons  entitled  to  the  Y.  estate. 

§420.  A.  entered  upon  the  estates  and  died,  leaving  no 
son,  but  leaving  his  grandson  C.,  the  child  of  his  daughter,  as 
his  heir  general  and  the  heir  general  of  the  testator.  C.  was 
entitled  to  estate  X.  as  tenant  in  tail;  but  as  he  claimed  through 
a  female,  he  was  not  entitled  as  tenant  in  tail  male  to  Y.  or  Z., 
and  B.  became  entitled  for  life  to  Y.  and,  subject  to  the  term  for 
sixty  years  to  trustees,  also  to  Z.  C.  was  not  born  till  after 
the  testator's  death.  B.  and  his  eldest  son  then  brought  a 
bill  praying  that  the  trusts  of  the  term  might  be  declared  void, 
and  that  the  trustees  might  be  declared  to  hold  it  and  directed 
to  convey  it  for  the  benefit  of  the  plaintiffs.  The  Court  of 
Exchequer  made  a  decree  accordingly,  and  C.  appealed.  The 
House  of  Lords  (Lords  Eldon,  C.,  and  Redesdale)  reversed  the 
decree,  and  declared  "that,  in  the  events  which  have  happened 
at  the  time  of  failure  of  issue  male  of  the  body  of  the  testator, 
such  of  the  uses  [to]  which  the  testator  by  his  will  directed,  the 
estates  so  to  be  purchased  should  be  conveyed,  as  would  other- 
wise have  been  capable  of  taking  effect,  were  too  remote,  and 
therefore  void;  and  that  therefore  the  trusts  of  the  real  estates, 
directed  by  the  testator's  will,  to  be  purchased  with  the  said 
two  sums  of  £17,500,  and  £2,500,  resulted  to  the  heir  at  law  of 
the  testator,  as  undisposed  of  by  the  testator's  will."  *  The 
House  of  Lords  and  the  Court  of  Exchequer  agreed  that  the 
trusts  upon  which  the  land  to  be  purchased  was  to  be  held  were 
too  remote,  but  they  differed  as  to  the  consequence  of  the  in- 
validity. The  Court  of  Exchequer  thought  the  term  should 

1  3  Dow,  217. 


TRUSTS.  367 

.sink  for  the  benefit  of  the  devisee;  the  House  of  Lords  thought 
there  was  a  resulting  trust  for  the  heir.  Several  points  are 
to  be  noticed. 

§  421.  (1)  It  was  first  suggested  by  the  devisees  that  the 
legal  estate  of  the  trustees  was  bad,  because  it  was  not  to 
begin  until  the  expiration  of  the  estates  tail  male  limited  to 
A.'s  sons.1  But  this  objection  was  overruled,  and  was  clearly 
unsound;  as  a  recovery  by  any  one  of  A.'s  male  issue,  tenants 
in  tail,  would  have  destroyed  the  term,  it  could  not  be  too 
remote.2 

(2)  The  Court  of  Exchequer  considered  that  the  trusts  of 
the  term  were  void  a&  initio.     Lords  Eldon  and  Redesdale 
were  of  the  opposite  opinion,  but  they  thought,  even  had  the 
trusts  been  void  ab  initio,  there  would  still  have  been  a  result- 
ing trust  to  the  hen-.3 

(3)  It  would  seem  to  have  been  the  intention  of  the  testator 
that  each  £2,500  accumulated  should  be  settled  for  life  on 
the  person  who  was  entitled  to  the  estate  when  the  accumula- 
tion was  finished.    As  the  accumulation  might  not  be  finished 
till  a  remote  period,  such  a  trust  would  be  wholly  void.    This 
was  perhaps  the  view  taken  by  the  Court  of  Exchequer. 

(4)  The  difficulty  lies  here.    Why  did  the  House  of  Lords 
refuse  to  consider  the  trusts  of  the  term  as  void  ab  initio  f 
Was  it  because  the  trust  to  accumulate  was  valid  until  stopped 
by  the  person  entitled  to  the  equitable  fee,  whoever  that  might 
be?    Or  was  it  because  the  trust  was  to  be  executed  at  the 
termination  of  the  estate  tail,  and  it  might  then  have  been 
executed  in  persons  whose  interest  would  not  have  been  too 
remote? 

(5)  It  seems  almost  impossible  that  the  House  of  Lords 
took  this  latter  view.    The  will  says  distinctly  that  as  each 
£2,500  is  raised,  the  trustees  are  to  lay  it  out  in  land  "and  at 
'the  same  time  to  settle  the  same"  on  such  person  "as  should 

1  3  Dow,  201,  202.  See  1  Jarm.  Wills  (6th  ed.)  439, 

1  3  Dow,  202,  215;  §  448,  post.         722. 
*  3  Dow,  205,  206,  210,  215,  216. 


368  THE   RULE   AGAINST  PERPETUITIES. 

then  be  in  possession"  of  the  X.  estate.  The  execution  of  the 
trust  and  the  designation  of  the  person  to  take  seem,  by  the 
clearest  language,  to  be  postponed  until  the  accumulation  has 
been  effected  and  are  therefore  too  remote  altogether.  The 
counsel  for  the  defendants  say:1  "This  point  was  but  little 
relied  upon  below  by  the  other  side;"  and  both  Lord  Eldon  and 
Lord  Redesdale  held  that  it  was  immaterial  whether  the  trusts 
were  void  ab  initio  or  not,  for  that  in  neither  case  were  the 
plaintiffs  entitled. 

(6)  But  it  must  be  admitted  that  the  language  of  the  law 
Lords  is  somewhat  ambiguous,2  and  so  are  the  remarks  of  Lord 
St.  Leonards 3  and  of  Mr.  Lewis.4  Mr.  Marsden 5  says,  it 
seems  to  have  been  the  effect  of  the  direction  to  convey  that 
"the  money  was  given  to  trustees  in  trust  to  be  applied  in  the 
purchase  of  lands,  which  were  to  be  conveyed  to  the  use  of 
the  person  for  life  who  should,  upon  failure  or  expiration  of  the 
estate  tail,  be  in  possession  of  certain  other  settled  estates." 

§  422.  The  important  proposition  to  be  extracted  from 
Tregonwell  v.  Sydenham,  according  to  Mr.  Lewis  and  Mr. 
Marsden,  is  this:  An  executory  trust  is  invalid  unless  its  ex- 
ecution must  take  place,  if  at  all,  within  twenty-one  years 
after  lives  in  being.6  But  if  it  must  be  executed  within  that 
time  it  is  good,  so  far  as  it  can,  according  to  its  terms,  be  exe- 
cuted in  favor  of  objects  not  too  remote  from  the  date  of  its 
creation.  The  possibility  that  it  may  not  be  capable  of  such 
execution  does  not  render  it  wholly  void.  As  has  been  said,7 
it  is  doubtful  if  this  proposition  can  claim  in  its  support  the 
authority  of  the  House  of  Lords,  but  there  seems  to  be  no 
reason  to  question  its  correctness,  and  it  has  now  been  so  held. 
In  re  Fane.9 

1  3  Dow,  202.  *  Perp.  136. 

*  3  Dow,  205,  215.  •  Or   immediately  on   the   ter- 
1  Sugd.  Law  Prop.  326  et  seq.,      mutation  of  an   estate  tail.      See 

362.  Chap.  XIV.,  post. 

*  Lewis,  Perp.  586  et  seq.    See          7  See  §  421  (5),  ante. 

also  1  Jarm.  Wills  (6th  ed.)  439,          •  [1913J  1  Ch.  (C.  A.)  404. 
722. 


TRUSTS.  369 

§  422  o.  Here,  perhaps,  is  the  fittest  place  to  note  the  deci- 
sion that  if  property  is  devised  on  several  trusts,  some  of  which 
are  too  remote,  the  trustee  will  take  only  such  estate  as  is 
necessary  to  carry  out  the  valid  trusts.1 

1  Doe  d.  McDonnell  v.  Mclsaac,  that  a  trustee  takes  only  the  estate 

Hasz.  &  Warb.  353;  Peters  (P.  E.  I.)  necessary  to  carry  out  the  trust, 

236.    In  the  United  States  it  has  even  when  the  trust  is  created  by 

commonly  been  held,  though  such  deed  and  not  by  will, 
decision   seems    against   principle, 


370  THE   BULB  AGAINST  PERPETUITIES. 


CHAPTER  XIII. 
MODIFYING  AND  QUALIFYING  CLAUSES. 

§423.  ALTHOUGH  the  construction  to  be  put  upon  an  in- 
strument is  not  affected  by  the  existence  of  the  Rule  against 
Perpetuities,1  yet  when  there  is  a  good  absolute  gift,  and  the 
settlor  or  testator  goes  on,  in  an  additional  clause,  to  modify 
the  gift,  and,  by  modifying  it,  makes  it,  in  part,  too  remote, 
the  modification  is  rejected  in  toto,2  and  the  original  gift  stands. 
Thus  if  land  is  devised  to  an  unborn  child  in  fee,  and  by  a  sub- 
sequent clause  of  the  will  the  testator  directs  that  the  land 
so  devised  shall  be  settled  on  such  child  for  life,  remainder  to  its 
children  in  fee,  which  remainder  is  void  for  remoteness,  the 
whole  modifying  clause  is  disregarded,  and  the  child  takes  a 
fee  simple.  "The  particular  ground  on  which  the  construction 
in  question  is  rested  is,  that  the  author  of  the  limitations  in- 
tends the  prior  absolute  gift  to  prevail,  except  so  far  only  as 
it  is  effectually  superseded  by  the  subsequent  qualifying  one."  3 
Mr.  Lewis  suggests 4  a  doubt  how  far  this  treatment  can  be 
applied  to  provisions  in  deeds,  but  it  seems  unlikely  that  any 
distinction  between  deeds  and  wills  would  be  made  at  the 
present  day. 

1  See  Chap.  XIX.,  post.  appointing  to  a  child,  and  then  the 

1  But    see    §§  430  o,    et    seq.,  donee  of  the  power  adds  that  the 

post.  property  so  appointed  shall  be  set- 

*  Lewis,  Perp.  535.    See  Lewis  tied  on  the  child  for  life,  remain- 

Perp.  c.  24;  1  Jarm.  Wills  (6th  ed.)  der  to  its  children,  this  additional 

361-362;  Marsden,  Perp.  c.  14.    A  clause  is  rejected,   and  the   child 

precisely  analogous  class  of  ques-  takes  the  absolute  interest.    Cases 

tions  presents  itself  in  the  execu-  thus   arising   in   the   execution   of 

tion  of  powers.    When,  for  instance,  powers  are  directly  applicable  to 

the  objects  of  a  power  are  confined  questions  of  remoteness, 

to  children,  and  it  is  executed  by  *  Perp.  540. 


MODIFYING   AND   QUALIFYING   CLAUSES.  371 

§424.  The  first  case  in  which  a  modifying  clause  was  so 
dealt  with  was  Arnold  v.  Congreve1  (1830).  There  a  testa- 
trix by  her  will  gave  legacies  to  her  grandchildren.  By  a 
codicil  she  directed  that  the  share  of  each  grandchild  should 
be  settled  on  it  for  its  life,  and  afterwards  on  its  children. 
Sir  John  Leach,  M.  R.,  held  that  the  limitations  to  the  great- 
grandchildren were  too  remote,  and  that  "the  intention  of 
the  testatrix  would  be  best  effectuated  by  holding  that  the 
absolute  interests  given  to  the  grandchildren  by  the  will  were 
not  destroyed  by  the  codicil."  2 

§  425.  In  Carver  v.  Bowles 3  (1831)  a  testator,  having  power 
by  his  marriage  settlement  to  appoint  by  will  a  trust  fund  to 
such  one  or  more  of  his  children,  "at  such  time  or  times,  in 
such  shares,  proportions,  manner,  and  form,  and  with,  under, 
and  subject  to  such  powers,  provisos,  conditions,  restrictions, 
and  limitations  over  (such  limitations  over  to  be  for  the  bene- 
fit of  some  one  or  more  of  such  children,  or  his,  her,  or  their 
issue)"  as  he  should  choose,  did,  by  will,  "appoint,  give,  and 
bequeath"  the  fund  to  his  five  children,  equally  to  be  divided 
between  them;  and  declared,  "so  far  as  I  lawfully  or  equitably 
may  or  can,"  that  the  shares  of  the  daughters  should  be  held 
for  themselves  for  life  without  power  of  anticipation,  and  on 
their  death  to  go  to  their  issue.  The  gift  to  the  issue  was  bad 
for  remoteness; 4  and  it  was  held  by  Sir  John  Leach,  M.  R., 
that  the  daughters  took  an  absolute  interest  in  the  property 
appointed,  and  not  a  life  estate.6 

1  1  Russ.  &  M.  209.  because  such  issue  were  not  objects 

*  As  all  the  grandchildren  of  the  of  the  power.    But  this  is  a  mistake; 

testatrix  were  alive  at  her  death,  the  issue  were  objects  of  the  power, 

the  gifts  to  the  great-grandchildren  —  it  was  for  remoteness  that  the 

were  not  too  remote,  and  on  this  gift  to  them  was  bad.    See  Lewis, 

point  the  case  has  been  overruled.  Perp.  535. 

See  §  389,  ante.  5  The  words,  "so  far  as  I  law- 

»  2  Russ.  &   M.  301,  304,  307,  fully  or  equitably  may  or  can," 

308.  may  have  influenced  the  decision. 

«  In  the  case  itself,  p.  307,  the  (Cf.    Church   v.   Kemble,   5   Sim. 

appointment   to  the   issue  of   the  525.) 

daughters  is  said  to  have  been  bad,  As  to  the  restraint  on  anticipa- 


372  THE   RULE  AGAINST  PERPETUITIES. 

§426.  In  Kampfv.  Jones1  (1837)  a  testatrix,  having  power 
to  appoint  a  fund  of  personal  property  to  her  children  or  re- 
mote issue  born  in  her  lifetime,  "subject  to  such  conditions, 
with  such  restrictions,  and  generally  in  such  manner"  as  she 
pleased,  by  will  appointed  that  the  fund  "should  go  and  be 
divided  between"  her  children  A.,  B.,  C.,  D.,  and  E.;  and 
she  directed  that  the  share  of  E.,  who  was  not  then  married, 
should  be  vested  in  the  trustees  of  the  will  in  trust  for  E.  for 
life,  and  on  her  death  for  her  issue.  It  was  held  that  the  gift 
to  the  issue  of  E.  being  bad,  the  whole  modification  ought  to 
be  rejected,  and  that  E.  took  an  absolute  interest.2  Here  the 
modifying  clause  was  bad,  because  the  issue  of  E.  were  not 
objects  of  the  power,  not  being  born  in  the  lifetime  of  the 
testatrix.3  Whether,  if  within  the  power,  the  gift  to  them 
would  have  been  too  remote  would  have  depended  upon 
whether  E.  was  alive  at  the  creation  of  the  power,  which 
does  not  appear. 

§  427.  In  Ring  v.  Hardwick 4  (1840)  a  testator  directed 
his  trustees  to  make  a  division  of  all  his  personal  estate  be- 
tween all  and  every  of  his  children,  viz.  his  two  sons  and  his 
two  daughters;  the  division  to  be  equal,  share  and  share 
alike,  the  shares  of  his  sons  to  be  paid  to  them,  "but  as  touch- 
ing and  concerning  the  shares  of  my  said  personal  estate 
which  will  become  the  property  of  my  said  daughters,"  the 
share  of  each  daughter  was  to  be  invested  in  the  names  of 
trustees,  in  trust  to  pay  the  income  to  her  during  her  life,  and 
on  her  death  to  her  children,  to  become  vested  in  them  re- 
spectively at  twenty-five,  with  gifts  over  in  case  any  of  such 
children  died  under  twenty-five.  Lord  Langdale,  M.  R.,  said: 
"I  think  that  there  is  sufficient  to  be  collected  from  the  prior 
words  in  this  will  to  give  an  absolute  interest  to  the  daughters; 
and  those  prior  words  are  so  connected  with  what  follows 

tion  by  the  daughters,  see  §  433,  Macn.  &  G.  551,  567,  568;  2  H.  & 

post.  Tw.  115,  131;  Lewis,  Perp.  536. 

1  2  Keen,  756.  *  §  423,  note,  ante. 

*  See    Lassence    v.    Tierney,    1          *  2  Beav.  352. 


MODIFYING   AND    QUALIFYING   CLAUSES.  373 

as  to  show  that  the  testator  intended  a  restriction  of  that 
absolute  interest;  and  the  restriction  not  having  become 
effectual,  the  whole  interest  remained  according  to  the  original 
gift." 

§  428.  Several  later  cases  to  the  same  effect  are  given  in  a 
note.1 

§  429.  In  Sears  v.  Putnam  *  a  testator  gave  his  property  to 
and  amongst  his  nephews  and  nieces  (children  of  his  deceased 
sisters),  and  directed  that  the  portion  of  each  niece  should  be 
held  in  trust  for  her  during  the  term  of  twenty-five  years  from 
his  death,  the  income  payable  to  her;  on  her  death  her  portion 
of  the  income  to  be  paid  to  her  children,  if  any,  otherwise  to 
the  remaining  cestuis  que  trust,  during  said  term;  at  the  end  of 
said  term  the  capital  to  be  paid  to  her,  or,  if  she  be  dead,  to  her 
children;  and  should  she  die  leaving  no  child  surviving  at  the 
end  of  said  term,  her  share  to  go  to  any  surviving  nieces,  and 
to  the  children  of  any  who  should  previously  have  died.  It 
was  held  that  the  limitations  over  being  void  for  remoteness 
the  whole  provisions  concerning  the  trust  should  be  disregarded 
and  that  the  nieces  took  absolute  interests. 

§  430.  In  Slade  v.  Patten 3  a  similar  course  was  pursued 
with  provisions  declared  by  the  Court  to  be  remote;  but 
as  there  was  in  truth  no  remoteness,  the  provisions  were 
unobjectionable.4 

1  Harvey   v.  Stracey,   1    Drew.  See  Gompertz  v.  Gompertz,  2  Ph. 

73,  139,  140.    Stephen  v.  Gadsden,  107;  Goodier  v.  Johnson,   18  Ch. 

20  Beav.  463.     Gerrard  v.  Butler,  D.  441;  In  re  Hancock,    [1901]  1 

Id.    541.      Courtier   v.    Oram,    21  Ch.  (C.  A.)  482;  sub  nom.  Hancock 

Beav.  91.     Churchill  v.  Churchill,  v.  Watson,  [1902]  A.  C.  14;  Re  Rus- 

L.  R.  5  Eq.  44.     Sondes'  Will,  2  sell,  [1895]  2  Ch.  (C.  A.)  698;  Se- 

Sm.  &  G.  416.     Cooke  v.  Cooke,  curity  Co.  v.  Snow,  70  Conn.  288; 

38  Ch.  D.  202.    Re  Boyd,  63  L.T.  Cain  v.  Watson,  [1910]  Viet.  L.  R. 

R.  92.     Dowglass   v.  Waddell,  17  256,  276.    Cf .  In  re  Daveron  [1893J 

L.  R.  Ir.  384.    In  re  Stewart,  [1907]  3  Ch.  421. 

S.  Aust.  L.  R.   1.     Trustees'   Co.  On  election  in  such  cases,  see 

v.    Jenner,    22    Viet.    L.    R.    584.  §§  541  et  seq.,  post. 
O'Brien's  Estate,  24  Viet.  L.  R.  360.  *  102  Mass.  5. 

Re    Phillips,    28    Ont.    L.    R.    94.  »  68  Me.  380. 

1  Jarm.  Wills  (6th  ed.)  361,  362.  4  §  235,  ante.    See  Pennsylvania 


374  THE   BULB   AGAINST   PERPETUITIES. 

§  430  a.  A  question  of  some  difficulty  may  arise.  The 
case  generally  presented  is  in  this  form:  an  absolute  gift  to 
an  unborn  person,  and  a  modification  giving  a  life  interest  to 
him,  with  a  gift  over  on  his  death,  which  is  void,  because  too 
remote.  Here  the  unborn  person  takes  the  absolute  interest. 
Suppose,  however,  there  is  a  bequest  to  A.  absolutely,  and  a 
modification,  by  which  the  estate  is  given  to  A.  for  life,  on  his 
death  to  his  eldest  child,  now  unborn,  for  life,  and  on  the 
death  of  such  eldest  child  on  a  remote  limitation.  Does  A. 
have  an  absolute  interest,  or  is  there  a  gift  to  A.  for  life,  then 
to  A.'s  son  for  life,  and  then  a  reversionary  gift  to  A.? 

§  430  6.  In  Cooke  v.  Cooke l  a  marriage  settlement  gave  the 
survivor  of  the  intended  husband  and  wife  power,  by  deed  or 
will,  to  appoint  among  children.  The  husband  survived,  and 
by  will  appointed  among  his  three  daughters  equally,  with  a 
proviso  that  each  daughter's  share  should  be  held  on  trust  for 
her  for  life,  and  on  her  death,  should  she  die  leaving  issue,  as 
she  should  appoint,  and  in  default  of  appointment  or  in  case 
she  should  not  leave  issue,  on  corresponding  trusts  for  the 
other  daughters.  A  daughter  sought  a  declaration  that  she 
was  entitled  to  one-third  of  the  appointed  property  absolutely. 
The  counsel  on  both  sides  and  the  Court  seem  to  have  assumed 
that  although  the  ultimate  limitations  were  too  remote,  the 
contingent  life  interests  given  to  the  other  daughters  were  in 
themselves  good.  The  counsel  for  the  plaintiff  said:  "It  is 
clear  that  the  limitation  contingently  cutting  down  the  plain- 
tiff's absolute  interest,  so  far  as  it  attempts  to  give  her  a  power 
of  appointment,  is  void.  We  submit  that  the  contingent  life 
interests  given  to  the  other  two  daughters  are  so  mixed  up 
with  a  disposition  that  is  void  for  remoteness  that  they  fail 
also."  The  counsel  for  the  defendants  said:  "As  to  the  ex- 
ercise of  the  power,  the  limitation  over  is  good,  so  far  as 
it  does  not  offend  the  Rule  against  Perpetuity.  The  contingent 
life  interests  given  to  the  other  daughters  of  the  testator 

Co.  0.  Price,  7  Phila.  465;  5  237  a,          »  38  Ch.  D.  202. 
ante. 


MODIFYING  AND   QUALIFYING  CLAUSES.  375 

in  case  Miss  Cooke  [the  plaintiff]  leaves  no  issue,  are  sepa- 
rable from  the  bad  part  of  the  appointment,  and  will  in  that 
event  take  effect."  North,  J.,  in  his  opinion  said:  "It  is  not 
disputed  that  the  effect  of  the  [proviso]  would  be  to  tie  up 
the  shares  longer  than  the  Rules  against  Perpetuity  allow.  That 
being  so,  what  becomes  of  the  property  hi  the  case  of  the 
plaintiff's  share:  is  it  undisposed  of,  or  do  the  trusts  given 
of  the  other  children's  life  interest  take  effect,  or  does  the  gift 
to  the  three  in  equal  shares  and  proportions  prevail,  so  that 
she  gets  her  share  absolutely?  In  my  opinion  that  is  the 
construction  that  is  to  have  effect.  .  .  .  The  rule,  as  I  under- 
stand it,  is  that  where  there  is  an  absolute  gift  followed  by  an 
attempt  to  limit  the  effect  of  that  gift,  which  limitation  for 
some  reason  cannot  take  effect,  the  original  gift  will  take  effect." 
The  authority  of  this  case,  it  must  be  admitted,  is  weakened 
by  the  fact  that  the  assumption  on  which  every  one  went 
seems  to  be  wrong.  The  original  power  was  a  special  one,  and 
therefore  the  interests  given  for  life  to  persons  unborn  at  the 
creation  of  the  original  power,  on  the  contingency  of  the 
death  without  issue  of  a  person  also  then  unborn,  were  them- 
selves too  remote.1 

§  430  c.  On  the  other  hand,  in  Smidmore  v.  Smidmore z 
a  testator  in  his  will  gave  real  estate  to  trustees  hi  trust  for 
his  son  absolutely.  By  a  codicil  he  cut  down  the  son's  interest 
to  a  Me  estate  determinable  on  alienation,  in  which  event  the 
income  during  the  son's  life  was  to  be  paid  to  those  who  would 
have  been  entitled  if  the  son  were  then  dead,  with  a  discretion- 
ary power  to  the  trustees  to  pay  the  income  to  the  son's  wife 
during  the  rest  of  his  life.  The  remainder,  on  the  son's  death, 
was  held  by  the  Court  to  be  void  either  as  uncertain  or  as 
too  remote,  but  that  the  power  was  valid.  The  authority  of 
this  case,  again,  is  weakened  by  the  fact  that  on  appeal  the 

1  This  seems  to  have  been  what  s  5   N.    8.   Wales   State   Rep. 

was  held  in  United  States  Fidelity      492. 
Co.  v.  Douglas'   Trustee,  134  Ky. 
374,  399. 


376  THE  BULE  AGAINST  PERPETUITIES. 

High  Court  of  Australia  l  thought  that  if  the  ultimate  re- 
mainder was  void,  the  decision  of  the  Court  below  as  to  the 
power  was  correct,  yet  that  the  ultimate  remainder  was  neither 
uncertain  nor  remote,  so  that  the  whole  modification  could 
stand  as  valid.2 

§  430  d.  In  Harvey  v.  Stracey 3  a  direction  in  the  modify- 
ing proviso  that  the  interest  of  a  woman  who  was  the  legatee 
should  be  for  her  separate  use  was  retained,  although  she 
was  given  the  absolute  interest.  But  this  does  not  appear 
to  have  been  done  in  any  of  the  other  cases.4 

§  431.  In  order,  however,  to  apply  this  rule  of  rejecting 
modifications  which  are  too  remote,  there  must  be  an  absolute 
gift  independent  of  the  modifications.  Thus  in  Whitehead  v. 
Bennett 8  a  testator  directed  that  all  his  property  should  be 
sold  and  "invested  for  the  benefit"  of  his  three  daughters, 
"and  the  interest  thereof  to  be  paid  to  each  of  my  said  daugh- 
ters during  their  respective  natural  lives,  without  the  control 
of  their  husbands,  and  on  the  decease  of  each  of  them"  he 
directed  "that  one-half  of  the  fund  or  share  from  which  in- 
terest or  the  income  thereof  is  hereby  directed  to  be  paid  to 
the  parent  respectively  for  life  as  aforesaid,  shall  be  paid  to 
the  children  of  each  of  my  daughters  so  dying,  equally,  at  the 
age  of  twenty-one  years,"  and  "that  the  interest  of  the  other 
half  shall  be  paid  to  the  children  of  each  of  my  daughters  for 
their  respective  lives,  and  on  the  decease  of  my  said  grand- 
children respectively  the  share  of  which  they,  my  said  grand- 
children, are  only  to  receive  the  interest  thereof  for  life  as 

1  3  Commonwealth  L.  R.  344.  and  then  a  direction  as  to  the  man- 

2  Cf.  In   re  Hancock,  [1901]  1  ner  in  which  the  legacy  was  to  be 
Ch.    (C.   A.)   482,   498;   sub  nom.  invested,     and     applied     for     the 
Hancock  v.  Watson,  [1902]  A.  C.  benefit  of  the  legatee,  and  those 
14, 22.  cases    where    there    was    "not    a 

1  1  Drew.  73,  139,  140.  diminution  or  qualification  of  the 

*  And  see  Sears  v.  Putnam,  102  original  gift,  but  merely  a  direc- 

Maas.  5,  9.    Cf .  Gompertz  v.  Gom-  tion  as  to  the  mode  in  which  it  waa 

pertz,  2  Phil.  107,  where  Gotten-  to  be  dealt  with  and  enjoyed." 
ham,     C.,     distinguishes    between  8  22  L.  J.  Ch.  1020. 

those  cases  where  there  was  a  gift, 


MODIFYING   AND    QUALIFYING   CLAUSES.  377 

aforesaid,  to  be  paid  to  their  children  respectively  when  and 
as  they  attain"  twenty-one  years.  The  limitation  to  the  great- 
grandchildren being  void,1  it  was  contended  that  the  daughters 
took  absolute  interests;  but  Kindersley,  V.  C.,  held  otherwise, 
and  that  they  took  only  Me  interests.2 

§  432.  Another  class  of  cases  in  which  a  modifying  clause  has 
been  rejected  is  presented  by  settlements  on  married  women, 
with  a  clause  against  anticipation.  A  life  interest  may  be  given 
to  the  unborn  daughter  of  a  living  person,  because  the  whole 
interest  must  vest,  and  the  daughter  have  an  estate  free  from 
any  condition,  within  the  required  time.  Suppose,  however, 
that  there  is  a  clause  against  anticipation  attached  to  the 
estate. 

§  433.  The  course  of  decision  has  been  as  follows:  In  Carver 
v.  Bowles*  (1831)  Sir  John  Leach,  M.  R.,  held  that  a  clause 
against  anticipation  attached  to  a  gift,  under  a  power,  to  a 
daughter  unborn  at  the  date  of  the  settlement  containing  the 
power,  was  good;  but  the  only  point  discussed  was  whether 
the  power  allowed  anticipation  to  be  restrained;  the  question  of 
remoteness  was  not  alluded  to  hi  this  connection.4  In  Thornton 
v.  Bright'*  (1836),  under  a  power  in  a  marriage  settlement  to 
appoint  to  the  children  of  the  marriage,  Lord  Cottenham,  C., 
held  that  an  appointment  to  trustees  for  the  separate  use  of  a 
daughter  was  good.  The  appointment  directed  that  the  daugh- 
ter should  have  no  power  of  anticipation.  In  the  arguments, 
nothing  was  said  about  this  clause  and  the  Chancellor  does 
not  appear  to  have  passed  upon  its  validity.  In  Dickinson  v. 

1  It  appears  from  the  case  that  Macn.  &  G.  551;  2  H.  &  Tw.  115; 

some    at    least    of    the    testator's  Reid  v.  Reid,  25  Beav.  469;  In  re 

grandchildren   were   living   at   his  Crawshay,  43  Ch.  D.  615;  King  v. 

death;    that    being    so,    it    would  King,  13  L.  R.  Ir.  531;  Graham  0. 

seem  that  the  gifts  to  then-  children  Whitridge,  99  Md.  248,  277.     Cf. 

would,  in  accordance  with  Cattlin  §  880,  post. 

v.  Brown,  11  Hare,  372,  and  the  J  2  Russ.  &  M.  301,  303,  307, 

like  cases,  §389,  ante,  have  been  308. 
good.    This  does  not  seem  to  have  *  §  425,  ante. 

been  observed  in  the  books.  '  2  Myl.  &  Cr.  230. 

*  See    Lassence    v.    Tierney,    1 


378  THE   RULE   AGAINST  PERPETUITIES. 

Mort l  (1850)  the  same  question  arose  as  in  Thornton  v.  Bright, 
and  the  appointment  to  separate  use,  with  a  clause  against 
anticipation,  was  held  good;  but  here  again  the  question  of 
remoteness  did  not  occur  to  court  or  counsel. 

§  434.  In  Fry  v.  Capper2  (1853)  Wood,  V.  C.,  held  that  an 
appointment  like  that  in  Thornton  v.  Bright  was  good,  notwith- 
standing there  was  a  clause  against  anticipation.  All  that  he 
had  to  decide  was  that  the  appointment  was  good;  but  he 
strongly  intimated  that  the  clause  against  anticipation  was  bad 
for  remoteness,  and  must  be  rejected.3  In  Armitage  v.  Coates  * 
(1865)  Lord  Romilly,  M.  R.,  gave  it  as  his  "strong  impression" 
that  such  a  clause  would  be  too  remote;  but  he  "expressed  no 
opinion"  on  it,  and  determined  the  case  on  a  ground  which 
made  the  decision  of  the  question  unnecessary. 

§435.  In  Re  Teague's  Settlement5  (1870)  Vice-Chancellor 
James  held  that  a  clause  against  anticipation  attached  to  an 
estate  given  to  an  unborn  child  should  be  disregarded.  This 
was  the  first  time  that  the  point  had  been  distinctly  determined. 
The  same  question  was  decided  in  the  same  way  by  Malins, 
V.  C.,  in  Re  Cunynghame's  Settlement 6  (1871). 

§  436.  In  Re  Ridley,  Buckton  v.  Hay  7  (1879),  Jessel,  M.  R., 
followed  the  cases  cited  in  the  two  preceding  sections,  but 
reluctantly,  thinking  them  wrongly  determined.  He  argued 
that  the  restraint  on  anticipation  was  an  exception  to  the 
whole  law,  including  the  Rule  against  Perpetuities;  that  it 
was  not  merely  an  exception  to  the  rule  allowing  free  aliena- 
tion, "but  an  exception  along  the  whole  line,  so  to  speak."  8 

§  437.  Hodgson  v.Halford,9  as  is  remarked  by  Mr.  Marsden,10 
seems  to  have  presented  the  question,  but  it  was  not  con- 

1  8  Hare,  178.  have  been  taken  substantially  from 

1  Kay,  163.  the    author's    treatise    upon    Re- 

1  See  3  Jur.  N.  s.,  pt.  2,  213,  for  straints   on   Alienation    (2d   ed.), 

an  article  on  Fry  v.  Capper  and  the  §§  272-272  c. 

earlier  cases.  7  11  Ch.  D.  645. 

4  35  Beav.  1.  •  P.  651. 

•  L.  R.  10  Eq.  564.  »  11  Ch.  D.  959. 

•  L.  R.  11  Eq.  324.    §§  432-435  10  Perp.  281,  282,  note  (o). 


MODIFYING  AND   QUALIFYING   CLAUSES.  379 

sidered.  In  Cooper  v.  Laroche  l  Malins,  V.  C.,  adhered  to  his 
opinion  in  Re  Cunynghame's  Settlement?  although  he  thought 
that  the  question  did  not  arise  in  Cooper  v.  Laroche.3  And 
restraints  on  anticipation  attached  to  life  estates  given  to  un- 
born persons  have  been  held  invalid  also  in  Re  Boyd*  In  re 
Game,5  and  Trustees  Co.  v.  Jenner.6 

§  437  a.  In  the  first  edition  of  this  treatise  the  series  of 
late  English  decisions,  from  In  re  Teague's  Settlement  to  Cooper 
v.  Laroche,  was  believed  to  give  the  law  correctly,  and  the  dis- 
approval of  the  doctrine  of  these  decisions  by  Jessel,  M.  R.,  was 
commented  on  unfavorably,  but  further  consideration  has 
led  to  the  conclusion  that  the  criticism  of  the  Master  of  the 
Rolls,  though  it  might  have  been  more  clearly  expressed,  was 
sound,  and  that  the  doctrine  of  those  decisions  cannot  be  sup- 
ported. They  seem,  in  fact,  to  be  offsprings  of  that  fertile 
source  of  error,  the  confusion  between  remoteness  and  restraints 
on  alienation.7  To  prevent  the  taking  of  property  out  of  com- 
merce there  are  two  rules.  First,  that  interests  must  vest  within 
a  certain  time;  second,  that  after  they  have  vested,  they  must  be 
alienable;  and  the  two  rules  are  independent.  An  estate  which 
must  vest  within  the  required  limits,  for  instance  an  estate  for 
life  to  the  child  of  a  living  person,  complies  with  the  Rule  against 
Perpetuities.  If  there  is  an  attempt  to  restrain  the  child  from 
alienating  the  estate,  the  validity  or  invalidity  of  that  at- 
tempt must  be  determined  with  reference  to  the  character  of 
the  estate  itself,  for  instance,  whether  it  is  to  a  married  woman, 
and  has  nothing  to  do  with  the  time  the  interest  begins. 

§  437  6.  The  soundness  of  Sir  George  Jessel's  conclusion  is 

1  17  Ch.  D.  368.  Russell,   [1895]  2  Ch.  698;   §  441, 

*  L.  R.  11  Eq.  324;  §  435,  ante.  post. 

1  The  question  did  arise;  §  215  o,  4  63  L.  T.  R.  92. 

ante.      See    Gray,    Restraints    on  8  [1907]  1  Ch.  276. 

Alienation  (2d  ed.)  272 /;  Marsden,          «  22  Viet.  L.  R.  584.    See  Tar- 

Perp.  281-283.     See  also   Re  Mi-  rant  v.  Backus,  63  Conn.  277. 
chael's  Trusts,  46  L.J.Ch.  651;  Her-          7  See   Challis,  Real   Prop.   (3d 

bert  v.  Webster,  15  Ch.  D.  610;  Re  ed.)  192,  note;  1  Jarm.  Wills  (6th 

ed.)  305,  306,  363. 


380  THE   RULE   AGAINST   PERPETUITIES. 

obscured  by  his  speaking  of  the  allowance  of  the  restraint 
against  anticipation  as  an  "exception"  to  the  Rule  against  Per- 
petuities. It  is  not  an  exception  to  that  rule,  it  has  nothing 
to  do  with  the  Rule,  it  is  the  result  of  an  independent  rule, 
i.  e.  that  married  women  can  be  restrained  from  alienating  their 
estates.1  The*  true  doctrine  is  believed  to  be  that  a  future  estate, 
not  in  itself  too  remote,  can  be  subjected  to  the  same  restraints 
to  which  a  present  estate  can  be  subjected.2 

§  438.  Restraints  against  anticipation  are  lawful  only  when 
attached  to  the  separate  estates  of  married  women;  but  where 
statutes,  as  in  New  York,  or  local  usage,  as,  for  instance,  in 
Pennsylvania  and  Massachusetts,3  allow  them  to  be  attached  to 
the  estates  of  men  or  of  single  women,  the  same  principles  should 
govern,  —  that  is,  the  same  restrictions  which  are  good  on 
present  estates  should  be  held  good  on  future  estates.4 

§  439.  The  cases  hitherto  considered  have  been  (1)  when 
there  has  been  an  absolute  gift,  which  has  afterwards  been 
modified  into  a  life  estate,  and  a  remote  remainder;  (2)  when 
there  has  been  a  good  estate,  with  a  clause  against  anticipation. 
But  there  seems  no  reason  why  the  principle  should  be  con- 
sidered only  in  connection  with  such  cases.  It  might  be 
applied  where  a  gift  is  made  in  trust  for  a  class  of  unborn 
persons,  and  then  a  discretion  given  to  trustees  to  distribute 
the  income  in  such  proportions  as  they  see  fit,  or  to  add  it  to 
the  capital.5  To  apply  the  principle,  however,  the  clause  giv- 
ing the  trustees  discretion  must  be  separate  from  the  gift.6 

1  For  an  argument  in  favor  of  4  See     Gardette's     Estate,    13 
the  doctrine  of   the  late  English  W.  N.  C.  (Pa.)  315;  16  Phila.  264; 
cases,  see  the  first  edition  of  this  §  240,  ante.     Cf.  Smith's  Appeal, 
treatise,   §§  432,  436;   the  author  88  Pa.  492;  §239,  note,  ante.    As  to 
now  believes  that  such  argument  restraints  on  anticipation  attached 
cannot  stand.  to  fees  simple  or  to  absolute  inter- 

2  Mr.  Charles  Sweet,  in  18  Jur.  ests  in  personalty,  see  §442,  post. 
Rev.    132,    143,  says:    "It   is   not  s  See  In  re  Blew,  [1906]    1  Ch. 
easy  to  see    any  answer    to    this  624;  §§  232,  246,  ante;  1  Jarm.  Wills 
argument."  (6th  ed.)  308. 

*  §  119,  note,  ante.  '  See  §  431,  ante.    On  provisions 


MODIFYING   AND   QUALIFYING   CLAUSES.  381 

§  440.  In  Webb  v.  Sadler,1  under  a  power  in  a  marriage 
settlement  to  appoint  to  children,  property  was  appointed  to 
a  son  for  life,  and  to  such  trusts  as  he  should  by  deed,  with 
the  consent  of  certain  persons,  or  by  will,  appoint.  Counsel 
contended  that  within  the  principle  of  the  foregoing  cases  the 
clause  requiring  consent  might  be  stricken  out,  and  that  the 
power  given  to  the  son  would  then  be  good,  as  he  would  have 
an  immediate  power  of  disposition.  But  Bacon,  V.  C.,  and,  on 
appeal,  the  Court  of  Appeal  in  Chancery,  held  the  appointment 
bad.  Lord  Selborne,  C.,  said:  "We  all  think  it  (the  consent) 
is  an  inseparable  condition  of  the  exercise  of  the  power.  There 
is  no  analogy  between  the  effect  of  such  a  clause  and  the  cases 
where  there  is  a  separate  and  superadded  condition  after  the 
gift  of  an  estate.  Here  there  is  no  power  except  with  consent."  2 

§  440  a.  A  will  gave  power  to  sell  land  at  the  death  of  a 
tenant  for  life.  A  codicil  directed  that  no  land  should  be  sold 
until  thirty  years  after  the  testator's  death.  It  was  held  that 
the  power  as  given  in  the  will  could  be  exercised,  and  the 
direction  in  the  codicil  rejected  as  too  remote.3 

§  441.  When  gifts  are  made  to  several  persons  by  one 
description,  but  the  gift  to  one  is  not  affected  by  the  existence 
or  non-existence  of  the  others,  the  gifts  are  separable;  and  if 
modifying  clauses  are  not  too  remote  when  applied  to  the 
gifts  to  some  of  the  persons,  but  are  too  remote  when  applied 
to  the  gifts  to  the  others,  they  will  be  operative  in  the  former 
cases,  although  they  are  disregarded  in  the  latter.4 

for     accumulation,     see     §     672,  ley's  Trusts,  [1902]  1  Ch.  543.    Re 

post.  Millward,  87  L.  T.  R.  476.    In  re 

1  L.  R.  14  Eq.  533;  L.  R.  8  Ch.  Game,  [1907]   1  Ch.  276.     See  51 
419.  Sol.  J.  224.    According  to  what  is 

2  L.  R.  8  Ch.  426.    See  §  477,  believed  to  be  the  sounder  view, 
post.  the  modifying  clauses  were  good  aa 

*  In  re  Raphael,  3  N.  S.  Wales  applied  to  all  the  gifts,  see  §§  436- 
State  Rep.  196.  437  b,   ante.     In  the  cases  of  R» 

*  Wilson  v.  Wilson,  28  L.  J.  Ch.  Michael's  Trusts,  46  L.  J.  Ch.  651. 
95;  4  Jur.  N.  s.  1076.     Herbert  v.  and  Re  Ridley,  Buckton  v.  Hay,  11 
Webster,  15  Ch.  D.  610.    Re  Rus-  Ch.  D.  645,  the  point  was  disre- 
sell,  [1895]  2  Ch.  698.    In  re  Feme-  garded.      See  also  Cooper  v.  La- 


382  THE   RULE   AGAINST  PERPETUITIES. 

§  442.  Directions  as  to  the  mode  in  which  absolute  inter- 
ests shall  be  enjoyed  are  void,  apart  from  any  question  of 
remoteness,  and  therefore  the  fact  that  such  directions  are  to 
be  carried  out  at  a  time  which  may  be  too  remote  does  not 
render  the  interests  invalid.1  Restraints  on  anticipation  can 
be  attached  to  gifts  to  married  women  for  their  separate  use  in 
fee,2  but  such  restraints  last  only  during  the  lives  of  the  women. 
They  will  therefore  be  dealt  with  in  the  same  way  as  when 
they  are  attached  to  life  estates.  In  Massachusetts  and 
Illinois,  if  property  is  held  in  trust  for  A.  absolutely,  with 
a  proviso  that  it  shall  not  be  paid  to  him  until  he  reaches  a 
certain  age,  say  forty,  A.  is  not  entitled  to  a  conveyance  before 
reaching  that  age.3  Suppose  in  Massachusetts  such  a  proviso 
is  attached  to  an  equitable  fee  given  to  an  unborn  person,  how 
will  it  be  treated?  In  analogy  to  the  prevailing  English  doc- 
trine on  restraints  upon  alienation,  it  will  be  void;  according 
to  the  opinion  of  Sir  George  Jessel,  which  seems  sounder,  it 
will  have  the  same  effect,  whatever  that  may  be,  that  it  would 
have  when  attached  to  an  equitable  fee  given  to  a  living 
person. 

§  442  a.  Postponement  of  vested  interests  is  allowed  when 
it  is  for  the  benefit  of  other  persons;  for  instance,  to  give  an 
opportunity  for  a  class  to  be  increased;  in  such  a  case  when 
the  provision  for  postponement  is  to  a  period  too  remote,  it  is 
probably  to  be  rejected  as  an  illegal  modification.4 

roche,  17  Ch.  D.  368;  §389,  ante,  tutionary    gifts,    see    §§386-388, 

Gray,    Restraints    on    Alienation  ante. 

(2d  ed.),  §§  272  e,  272  f;  Marsden,          »  See  Gray,  Restraints  on  Alien- 

Perp.  283;  1  Jarm.  Wills  (6th  ed.)  ation  (2d  ed.),  §§  125  et  seq. 
363.  «  See  §§  121  c-121  ti,  ante. 

1  Chap.  IV.,  ante.    On  eubsti-          «  See  §§  121  a,  121  6,  638  et  seq. 


LIMITATIONS  AFTER   ESTATES   TAIL.  383 


CHAPTER  XIV. 
LIMITATIONS  AFTER  ESTATES  TAIL. 

§  443.  A  FUTURE  estate  which,  at  all  times  until  it  vests, 
is  in  the  control  of  the  owner  of  the  preceding  estate  is,  for 
every  purpose  of  conveyancing,  a  present  estate,  and  is  there- 
fore not  obnoxious  to  the  Rule  against  Perpetuities.  Conse- 
quently an  estate  after  an  estate  tail  which  must  vest,  if  at 
all,  at  or  before  the  termination  of  the  estate  tail,  is  never  too 
remote;  for  there  is  always  some  one,  viz.  the  tenant  in  tail, 
who  can,  at  any  time,  destroy  it  by  barring  the  entail.1 

§  444.  The  fact  that  the  tenant  in  tail  may  be  a  minor,  or 
that  there  may  be  an  indefinite  series  of  minorities  during 
which  the  estate  tail  cannot  be  barred,  does  not  affect  the 
question.  This  is  no  more  than  may  happen  with  any  inter- 
est. A  fee  simple  absolute  in  possession  cannot  be  transferred 
so  long  as  the  tenant  is  a  minor.2 

§  445.  If  the  estate  tail  is  itself  too  remote  it  will  not  pro- 
tect any  future  limitations:3  but  it  need  not  be  an  estate  in 
possession,  if  it  must  vest  within  the  limits  of  the  Rule  against 
Perpetuities.4 

§  446.  In  considering  limitations  after  an  estate  tail  the 
important  point  is  to  observe  whether  they  can  possibly  vest 
at  a  time  subsequent  to  the  termination  of  the  estate  tail.  If 
they  can,  they  are  bad.  It  is  true  that  if  the  tenant  in  tail 
should  bar  the  entail,  such  limitations  would  be  destroyed; 
but  if  the  estate  tail  should  come  to  an  end  without  being 

1  Lewis,  Perp.  664,  665.  •  Mareden,  Perp.  141. 

1  See  Ferrand  v.  Wilson,  4  Hare,  *  Lewis,    Perp.   666,    667.     Cf. 

344,  374;  Turvin  v.  Newcome,  3  K.  Craig  v.  Stacey,  Ir.  Term  R.  249. 
&  J.  16,  19;  Marsden,  Perp.  20,  21. 


384  THE   RULE   AGAINST   PERPETUITIES. 

barred,  and  the  remainder-man  in  fee  come  into  possession, 
the  limitations  would  be  indestructible,  and  so  obnoxious  to 
the  Rule  against  Perpetuities.  As  therefore  the  limitations 
might  vest  at  a  remote  time,  and  might  be  incapable  of  de- 
struction by  the  owner  of  the  estate  in  possession,  they  are 
void  altogether. 

§  447.  As  a  remainder  after  an  estate  tail  must  take  effect, 
if  at  all,  on  the  termination  of  the  estate  tail,  it  can  never  be 
too  remote.1  And  it  is  immaterial  whether  the  remainder  is 
directly  to  the  persons  to  be  benefited,  or  whether  it  is  to  a 
trustee  in  trust  to  sell  the  land  and  divide  the  proceeds  among 
them,  provided  they  must  be  determined  at  the  expiration  of 
the  estate  tail.2 

§  448.  So  a  term  for  years  limited  on  the  expiration  of  an 
estate  tail  is  not  too  remote,3  and  a  charge  to  arise  on  the 
termination  of  an  estate  tail  is  valid.4 

§  449.  Conditional  limitations  which  must  take  effect,  if  at 
all,  during  the  continuance  of  an  estate  tail  are  also  never  too 
remote.  Such  is  a  gift  over  if  any  tenant  in  tail  ceases  to  bear 
the  arms  or  name  of  the  settlor  or  testator.5 

§  450.  But  a  conditional  limitation  which  may  not  take 
effect  till  a  time  subsequent  to  the  termination  of  the  estate 

1  Cole  v.  Sewell,  4  Dr.  &  W.  1;  U.  S.  83,  108.    So  far  as  the  trusts 
2  Con.  &  L.  344;  5  Ir.  L.  190;  2  H.  are  for  the  benefit  of  persons  who 
L.  C.  186.    Jack  d.  Westby  v.  Feth-  may  not  be  determined  until  after 
erstone,  2  Huds.  &  Br.  320.     See  the  expiration  of  the  estate  tail, 
Doe  d.  Winter  v.  Perratt,  5  B.  &  they  are  void.     See  Tregonwell  v. 
C.  48;  7  Scott,  N.  s.  1;  9  Cl.  &  F.  Sydenham,  3  Dow,  194;  Marsden, 
606;  6  Man.  &  G.  314;  Wrightson  Perp.  144,  161,  162;  §§  419  et  seq., 
v.  Macaulay,  14  M.  &  W.  214;  4  ante. 

Hare,    487;    Marsden,  Perp.    142,  »  Goodwin  v.  Clark,  1  Lev.  35; 

143;  1  Jarm.  Wills  (6th  ed.)  322.  swfc  now.  Goodiar  v.  Clarke,  1  Sid. 

2  Morse  t>.  Ormonde,  5  Mad.  99;  102;  Goodier  v.  Clerke,  1  Keb.  73, 
1  Russ.  382.     Heasman  v.  Pearse,  78,   169,  246,  462.     Morse  v.  Or- 
L.    R.  7  Ch.  275,    reversing    the  monde,  5  Mad.  99;  1  Russ.  382. 
manifestly    incorrect     decision    of  *  Faulkner   v.  Daniel,  3    Hare, 
Malms,  V.  C.,  L.  R.  11  Eq.  522.  199. 

In  re  Haygarth,  [1912]  1  Ch.  510.  *  Nicollsv.  Sheffield,  2  Bro.C.C. 

Barber  v.  Pittsburgh  Railway,  166      214.     Carr  v.  Erroll,  6  East,   58. 


LIMITATIONS   AFTER  ESTATES   TAIL.  385 

tail  is  too  remote.1  Thus  a  conditional  limitation  over  if  any 
owner  of  the  property  shall  cease  to  bear  the  name  of  X., 
may  come  into  effect  after  the  tenant  in  tail  has  died  with- 
out issue,  and  when  the  remainder-man  in  fee  or  his  grantee 
is  in  possession,  and  it  is  therefore  too  remote.2 

§  451.  A  limitation  which,  after  a  legal  estate  tail,  would 
be  a  contingent  remainder,  and  therefore  good,  may  be  bad 
after  an  equitable  estate  tail,  because  it  is  not  then  really  a 
remainder,  but  may  take  effect  at  a  time  after  the  estate  tail 
has  come  to  an  end.  Thus  a  contingent  remainder  after  a  legal 
estate  tail  male,  on  failure  of  issue  generally,  is  good,  because, 
\inless  it  can  take  effect  on  the  termination  of  the  estate  tail, 
it  cannot  take  effect  at  all:  but  such  a  gift  after  an  equitable 
estate  tail  male  could,  were  it  not  for  the  objection  of  remote- 
ness, take  effect  long  after  the  estate  tail  was  at  an  end;  for  a 
man's  male  issue  may  come  to  an  end  generations  before  his 
issue  generally  come  to  an  end.3 

§  452.  In  like  manner,  while  a  remainder  after  an  estate  tail 
is  good,  a  grant  of  the  reversion  on  a  contingency  after  an  estate 
tail  may  be  bad.  Take  the  instance  in  the  preceding  section. 
A  remainder  after  an  estate  tail  male  on  failure  of  issue  gener- 
ally is  good;  but  the  grant  of  the  reversion,  after  an  estate 
tail  male,  to  take  effect  on  failure  of  issue  generally  is  too 
remote.4 

Doe  d.  Lumley  v.  Scarborough,  3  (156).     Such  gift  over  limited  on 

A.  &  E.  2.    Harrison  v.  Round,  2  an  estate  in  fee  is,  of  course,  bad. 

De  G.  M.  &  G.  190.    See  Cole  v.  Bennett  v.  Bennett,  2  Dr.  &  Sm. 

Sewell,  4  Dr.  &  W.  1,  32;  Benson  266. 

t>.  Hodson,  1  Mod.  108,  111;  Ban-  l  See  Bandon  v. Moreland,  [1910] 

don  v.  Moreland,  [1910]  1 1.  R.  220;  1  I.  R.  220;  §  446,  ante. 

Gilb.  Uses  (Sugd.  ed.)   157,  note;  2  Hartopp   v.  Carbery,  cited    1 

Lewis,   Perp.   665,   666;   Marsden,  Sand.    Uses    (5th    ed.)    204,    205. 

Perp.  148-150;  3  Dav.  Prec.  Conv.  Lewis,   Perp.   669-672.     Marsden, 

(3d  ed.)  364,  note;  1  Jarrn.  Wills  Perp.  147. 

(6th  ed.)  321,  322;  Taylor  v.  Taylor,  »  See  62,  L.  T.  56.    Cf .  Abbiss 

63  Pa.  481.    Cf.  Ferguson  v.  Fer-  v.  Burney,  17  Ch.  D.  211;  §325, 

guson,  39  U.  C.  Q.  B.  232;  1  Ont.  ante;  1  Jarm.  Wills  (6th  ed.)  322. 

Ap.  452;  2  Can.  S.  C.  497;  2  Hayes,  *  Lanesborough    v.    Fox,    Cas. 

Conv.    (5th    ed.)    170-172,    note  temp.   Talb.   262;   3   Bro.   P.   C* 


386  THE   RULE   AGAINST   PERPETUITIES. 

§  453.  Mr.  Lewis 1  has  suggested,  and  Mr.  Preston 2  has 
said,  that  a  conditional  limitation  which  may  take  effect  sub- 
sequent to  the  termination  of  an  estate  tail  is  good  while  the 
estate  tail  lasts,  though  void  afterwards;  but  Mr.  Preston 
admits  that  there  is  no  decision  to  this  effect,  and  such  an 
opinion  seems  contrary  to  analogy.  Suppose  an  estate  is 
given  to  A.  for  life,  remainder  to  B.  in  fee,  with  a  conditional 
limitation  over  upon  an  event  which  may  happen  either  be- 
fore or  after  the  death  of  A.  No  one  has  ever  questioned 
that  such  a  limitation  is  within  the  Rule  against  Perpetuities, 
even  though  the  event  should  happen  in  the  lifetime  of  A.3 

§  454.  The  law  with  regard  to  powers  in  connection  with 
estates  tail  is  given  in  the  chapter  on  Powers.4 

§  454  a.  In  Trevelyan  v.  Trevelyan 5  land  was  conveyed  to 
A.,  who  covenanted  that  he  and  his  heirs  would  reconvey  it  to 
the  grantor  at  any  time  "during  the  continuance  of  the  strict 
settlement"  under  which  he  was  tenant  for  life  of  other  land. 
It  was  held  that  the  covenant  could  not  be  enforced. 

§  455.  Before  the  Statute  De  Donis  an  estate  to  A.  and 
the  heirs  of  his  body  gave  A.  a  fee  simple  conditional,  and 
the  law  is  now  the  same  in  South  Carolina,  the  Statute  De 
Donis  never  having  been  in  force  there.6      The  possibility 
of  reverter  after  a  fee  simple  conditional  is  not  too  remote.7 
There  can  be  no  remainder  after  a  fee  simple  conditional.8 
It  was  held  in  several  cases  in  South  Carolina  that  there  can 
be  no  executory  limitation  after  a  fee  simple  conditional,  but 
there  seemed  no  sufficient  reason  for  this  conclusion; 9  and 
other  South  Carolina  cases,  in  deciding  that  certain  executory 

(Toml.  ed.)  130.    Bankes  t>.  Holme,  Prop.   349;   3   Dav.   Free.    Conv. 

1    Russ.    394,    note.      Bristow   p.  (3d  ed.)  466,  note,  483,  484,  note. 
Boothby,  2  S.  &  St.  465.     1  Jarm.  §§  487  et  seq.,  post. 

Wills    (6th    ed.)    325.      Marsden,  53  L.  T.  R.  853. 

Perp.  144.    See  Lewis,  Perp.  668.  §  14,  note,  ante. 

1  Perp.  672;  Suppl.  105.  §  313,  ante. 

*  2  Prest.  Abs.  158.  §  14,  ante. 

1  See  cases  cited  in  the  preced-  §  14,  note,  ante, 

ing  sections;  and  cf.  Sugd.  Law  of 


LIMITATIONS  AFTER   ESTATES  TAIL.  387 

devises  after  fees  simple  conditional  are  too  remote,  implied 
that,  if  limited  so  as  not  to  be  too  remote,  they  would  be 
good;  and  it  has  now  been  determined  in  South  Carolina  that 
there  may  be  an  executory  devise  after  a  fee  simple  conditional.1 
Whether  an  executory  devise  so  limited  that  it  must  take  effect, 
if  at  all,  during  the  continuance  of  the  fee  simple  conditional 
is  destructible  by  the  tenant  of  the  fee,  and  therefore  not  open 
to  an  objection  of  remoteness,  does  not  appear  to  have  been 
adjudged  in  South  Carolina.2 

§  456.  There  is  a  series  of  English  cases  in  which  substance 
seems  to  have  been  sacrificed  to  form.  To  understand  them  it  is 
necessary  to  take  into  account  some  preliminary  considerations. 
While  a  limitation  after  an  estate  tail  is  destroyed  by  barring  the 
estate  tail,  a  limitation  before  an  estate  tail  is  not  affected  by  a 
recovery  suffered  by  the  tenant  in  tail.  Thus  if  an  estate  tail  is 
given  to  A.,  and  on  failure  of  A.'s  issue  a  term  is  given  to  N.,  a  re- 
covery by  A.  destroys  N.'s  term;  but  if  a  term  is  given  to  N.,  and 
subject  to  this  term  an  estate  tail  is  given  to  A.,  a  recovery  suf- 
fered by  A.  does  not  affect  the  term.  It  may  be  difficult  in  some 
cases  to  tell  whether  a  limitation  precedes  or  follows  an  estate 
tail,3  but,  when  this  is  determined,  the  effect  of  barring  the  estate 
tail  on  such  limitation  is  settled.  Consequently,  as  we  have  seen, 
a  limitation  subsequent  to  an  estate  tail,  provided  it  cannot  take 
effect  at  a  time  posterior  to  the  expiration  of  the  estate  tail,  is  not 
open  to  the  objection  of  remoteness;  while,  on  the  other  hand,  a 
limitation  prior  to  an  estate  tail  is  not  good,  unless  it  complies 
with  the  requirements  of  the  Rule  against  Perpetuities.4 

1  §  14,  note,  ante.  borough,  3  A.  &  E.  2,  reversed  in 

2  See    Jones    v.    Postell,    Harp.  Cam.  Scac.  Id.  897.     In  re  Stam- 
92,  99,  note,  100,  note.    In  Bethea  ford,  [1911]  1  Ch.  255,  reversed  on 
v.   Bethea,   48  So.   Car.   440,   the  appeal.   [1912]  1  Ch.  (C.  A.)  343. 
question  does  not  seem   to   have  3  Dav.  Free.  Conv.   (3d  ed.)  398 
been  presented,  as  the  tenant  of  the  et  seq.    Chance,  Pow.  Suppl.  114- 
conditional  fee  had   acquired  the  126.     Sugd.   Real   Prop.   Statutes 
interests  of  the  executory  devisees.  (2d  ed.)   193-196.     1  Jarm.  Wills 

J  Roper   v.   Hallifax,  8    Taunt.       (6th  ed.)  323. 
845.     Doe    d.    Lumley    v.    Scar-  *  Mainwaring  v.  Baxter,  5  Vee. 


388  THE  BULB  AGAINST  PERPETUITIES. 

§457.  Thus  far  there  is  no  question;  the  difficulty  arises 
when  a  term  is  prior  to  an  estate  tail,  but  the  trusts  of  the 
term  can  operate  only  during  the  continuance  of  the  estate 
tail.  Here,  although  the  term  is  indestrucible  by  the  tenant 
in  tail,  yet  the  latter,  by  barring  the  estate,  will  make  it  im- 
possible for  any  of  the  trusts  of  the  term  to  take  effect.  Are 
these  trusts  open  to  the  objection  of  remoteness? 

§  458.  Suppose  land  is  devised  to  A.  for  life,  remainder  to 
his  issue  successively  in  tail  male,  remainder  over  in  fee,  sub- 
ject to  a  term  for  five  hundred  years  to  trustees,  in  trust,  if  A. 
should  die  without  issue,  to  raise  a  sum  of  money  and  pay  it  to 
B.  Here  the  trust  is  too  remote,  for  A.  may  not  die  without 
issue  until  long  after  the  estate  tail  has  been  barred.  These 
were  substantially  the  facts  in  Case  v.  Drosier,1  in  which  Lord 
Langdale,  M.  R.,  and,  on  appeal,  Lord  Cottenham,  C.,  held 
such  trusts  too  remote;  as  the  Master  of  the  Rolls  said:  "After 
a  recovery,  there  would  remain  a  term  and  a  trust  to  be  per- 
formed; a  trust  which  could  not  be  defeated,  and  a  term  which 
cannot  be  destroyed."  2 

§  459.  But  suppose,  on  the  other  hand,  that  a  settlement 
was  subject  to  a  term  the  trustees  of  which  were  directed,  in 
case  any  tenant  in  tail  became  owner  of  certain  other  property, 
to  raise  a  sum  of  money  for  A.  Here,  if  any  tenant  in  tail 
barred  the  estate,  although  the  term  would  not  be  destroyed, 
yet  the  trusts  could  never  arise,  because  there  would  be  an  end 
to  all  possible  tenants  in  tail  under  the  settlement. 

§  460.  Again,  suppose  Whiteacre,  or  personal  property,  is 
devised  in  trust  to  pay  the  income  to  the  first  tenant  in  tail 
of  Blackacre  who  fulfils  a  condition  which  may  be  too  remote, 
for  instance,  to  the  first  tenant  in  tail  who  reaches  twenty-five, 
the  trust  is  too  remote.  It  is  true  that  the  tenant  in  tail  of 
Blackacre  can  bar  the  entail,  so  that  no  object  of  the  trust 

458.    Case  v.  Drosier,  2  Keen,  764:  3  Dav.  Free.  Conv.  (3d  ed.)  577, 

5  Myl.  &  Cr.  246.     1  Jarm.  Wills  note. 

(6th  ed.)  313,  323.     Lewis,  Perp.  »  2  Keen,  764;  5  Myl.  &  Cr.  246. 

668,    669.      Mareden,    Perp.    152.  *  2  Keen,  774. 


LIMITATIONS  AFTER  ESTATES   TAIL.  389 

can  ever  come  into  existence;  but  in  case  the  estate  tail  is 
barred,  or  comes  to  an  end  without  being  barred  before  any 
tenant  in  tail  reaches  twenty-five,  there  is  a  resulting  trust  to 
the  heir  or  devisee  of  Whiteacre,  or  to  the  next  of  kin  or  the 
residuary  legatee  of  the  personalty.  Such  heir,  devisee,  next 
of  kin,  or  legatee  is  the  person  who  owns  Whiteacre  or  the 
personal  property,  subject  to  the  trust  for  the  tenant  in  tail  of 
Blackacre;  but  he  cannot  destroy  this  trust;  he  has  not  the 
practical  absolute  interest  which  a  tenant  in  tail  in  possession 
has;  and,  therefore,  the  trust,  not  being  destructible  by  him, 
is  obnoxious  to  the  Rule  against  Perpetuities. 

§  461.  Once  more,  suppose  personal  property  is  devised  in 
trust  to  convert  it  into  real  estate  and  settle  it  on  the  same 
terms  as  Blackacre,  and  Blackacre  is  settled  on  a  tenant  in 
tail.  Here  the  trust  is  not  too  remote,  for  the  tenant  in  tail 
has  the  immediate  vested  interest  in  the  property,  and  the 
entire  disposition  of  it  is  in  his  control. 

§  462.  Finally,  suppose  personal  property  is  devised  in  trust 
to  accumulate  the  income  until  a  certain  amount  is  reached, 
and  then  settle  it  on  the  same  terms  as  Blackacre,  and  Black- 
acre  is  settled  on  a  tenant  in  tail.  Here  again  the  trust  is  not 
too  remote,  for  the  tenant  in  tail  has  a  vested  interest,  and  can 
stop  the  accumulation  at  any  time.1  Now,  to  take  up  the 
cases. 

§463.  In  Southampton  v.  Hertford2  land  was  conveyed  in 
strict  settlement  subject  to  a  term  to  trustees  in  trust,  during 
the  minority  of  any  immediate  tenant  for  life  or  tail  under  the 
settlement,  to  receive  and  accumulate  the  profits  for  the  person 
who,  on  the  expiration  of  the  minority,  should  be  tenant  in 
possession  and  twenty-one  years  old.  Sir  William  Grant, 
M.  R.,  held  the  trust  void.  Here  there  was  a  resulting  trust 
of  the  profits  to  the  heir.  He  was  the  person  entitled  to  the 
accumulations  if  the  contingent  gift  never  took  effect,  but  he 
had  no  control  over  the  contingent  gift,  and  consequently  such 
gift  was  void  as  too  remote.  A  tenant  in  tail,  who  was  a  minor, 

1  See  §§  672,  673,  post.  *  2  V.  &  B.  64. 


390  THE   RULE  AGAINST  PERPETUITIES. 

had  no  vested  interest  in  the  rents;  his  interest  was  contingent 
on  his  reaching  twenty-one,  which  might  never  happen.  If  he 
died  before  he  reached  twenty-one,  the  accumulations  did  not 
belong  to  his  estate,  but  to  the  heir.  No  one  was  therefore  ab- 
solutely entitled  to  the  accumulated  funds  until  the  contingent 
event  occurred,  and  consequently  the  gift  of  the  accumulated 
fund  was  too  remote.  The  objection  was  not  to  the  trus- 
tees entering  at  a  remote  tune,  for  the  object  of  the  trust  could 
be  at  any  time  destroyed  by  barring  the  estate  tail;  but  that,  if 
the  estate  was  not  barred,  and  the  trustees  did  enter,  they  were 
to  accumulate  the  profits  for  a  remote  event,  and  for  a  person 
who  might  be  other  than  the  present  tenant  in  tail;  and  that  the 
present  tenant  in  tail  was  not  entitled  to  the  accumulations. 

§  464.  In  Marshall  v.  Holloway  1  a  testator  gave  his  real 
and  personal  estate  to  trustees  in  trust  to  invest  the  rents  and 
income,  whenever  any  person  beneficially  interested  under 
the  will  should  be  under  age,  as  part  of  the  personal  estate; 
and,  subject  to  this  trust,  he  settled  the  real  estate  on  A.  for 
life,  with  remainders  in  tail.  The  trusts  of  the  personal  estate 
were  too  remote.  Lord  Eldon,  C.,  held  the  trusts  to  invest 
during  minority  to  be  bad  for  remoteness.  No  criticism  seems 
necessary  on  either  of  the  preceding  decisions.  In  neither  of 
them  was  the  objection  that  the  trust  to  hold  during  the  mi- 
nority of  tenants  in  tail  was  too  remote,  or  that  the  direction  to 
accumulate  was  in  itself  void,  but  that  the  object  of  the  accu- 
mulation was  too  remote.2 

1  2  Swanst.  432.  Ambl.  479,  is  so  obscurely  reported 

1  See    Lewis,   Perp.   Suppl.   183  that   it   is  impossible  to   tell   the 

et  seq.;  Marsden,  Perp.  155,  156;  1  ground  on  which  it  was  decided. 

Jarm.  Wills  (6th  ed.)  313,  note;  3  It  was  a  case  out  of  Chancery.    A. 

Jur.  N.  8.,  pt.  2,  181;  Sugd.  Law  of  by  his  will  devised  land  to  trustees 

Prop.  347-349;  3  Dav.  Prec.  Conv.  and  their  heirs  to  the  use  of  B.  for 

(3d    ed.)    465,    note;    Ferrand    v.  life,  remainder  to  the  use  of  B.'s 

Wilson,    4    Hare,    344,    377,    378;  first  and  other  sons  in  tail  male 

Dungannon  v.  Smith,  12  Cl.  &  F.  successively,  with  remainder  over; 

546,  610.  provided  that  while  B.  was  under 

The  earlier  case  of  Lade  v.  Hoi-  twenty-six,  "and  so  often  and  dur- 

ford,  1  W.  Bl.  428;  3  Burr.  1416;  ing  such  time,  as  the  person  who 


LIMITATIONS   AFTER   ESTATES   TAIL. 


391 


§  465.  In  Cross  v.  Glennie  l  the  accumulation  during  minori- 
ties was  to  be  laid  out  in  trust  for  such  person  or  persons  as 
for  the  time  being  should  under  the  testator's  will  be  entitled  in 
possession  to  the  settled  estates.  It  was  conceded  by  counsel 
that  the  limitations  were  not  too  remote,  and  Vice-Chancellor 


for  the  time  being  (in  case  he  had 
not  otherwise  directed)  would,  by 
virtue  of  the  said  will,  have  been 
entitled  in  possession  to  the  devised 
premises  as  tenant  for  life  or  in  tail, 
shall  be  under  the  age  of  twenty- 
six,  the  trustee  and  their  heirs  shall 
and  may  enter  on  the  premises,  and 
take  the  rents  and  profits,"  pay 
certain  sums  to  such  person,  "and 
the  residue  to  be  disposed  of  as  the 
residue  of  the  testator's  personal 
estate  is  thereby  directed  to  be  dis- 
posed of;  viz.,  to  be  laid  out  in  lands 
and  settled  as  the  estate  before 
devised."  B.  reached  twenty-six, 
died,  and  had  a  posthumous  son, 
C.  The  question  put  to  the  Court 
of  King's  Bench  was  whether  on 
the  birth  of  C.  the  trustees  took 
any  estate  in  the  premises  devised, 
by  virtue  of  the  above  proviso. 

It  was  argued  for  C.  that  the 
proviso  was  void  as  tending  to  a 
perpetuity  (not,  however,  because 
the  trustee's  estate  might  come 
into  existence  at  too  remote  a 
period,  but)  "by  taking  away  the 
power  of  alienation  five  years 
longer  than  the  policy  of  the  law 
admits;"  and  also  because  it  was 
"in  derogation  of  the  legal  powers 
of  tenant  in  tail."  1  W.  Bl.  429. 

The  Court  of  King's  Bench  certi- 
fied that  the  trustees  took  no  estate 
under  the  proviso,  but  assigned  no 
reasons.  Lord  Northington,  C., 
confirmed  the  certificate,  saying: 
"The  directions  and  provisions  in 


the  testator's  will,  by  which  he 
attempted  to  direct  the  accumula- 
tion of  the  rents  and  profits  of  his 
real  estate,  being  repugnant  to  the 
limitation  of  an  estate  tail  to"  C., 
"were  void."  Fearne,  C.  R.  530, 
Butler's  note.  Mr.  Fearne  says 
this  case  seems  to  fall  within  the 
rule  "that  estates  shall  not  cease 
as  to  part,  and  vest  and  revest." 
Fearne,  C.  R.  530.  Mr.  Butler,  in 
his  note  to  the  passage  of  Fearne, 
just  cited,  denies  that  this  is  the 
reason  of  the  invalidity,  and  says: 
"The  real  objection  to  the  limita- 
tion in  the  proviso  was  that  it 
directed  a  dry  accumulation  of  the 
surplus  rents  for  a  period  of  twenty- 
six  years;  this  exceeded  the  period 
for  which  the  law  allows  such  an 
accumulation  to  be  continued." 

Lord  Northington's  remark  sup- 
ports Mr.  Fearne's  view  that  the 
case  was  decided,  not  on  the  ground 
of  remoteness  at  all,  but  of  repug- 
nancy. And  the  argument  of  the 
counsel  and  the  language  of  Mr. 
Butler  show  that  the  objection  of 
remoteness  arose  from  the  accumu- 
lation being  ordered  for  twenty- 
six  years,  and  that  had  it  been 
confined  to  twenty-one  years,  the 
proviso  would  not  have  been  con- 
sidered obnoxious  to  the  Rule 
against  Perpetuities.  3  Dav.  Prec. 
Conv.  (3d  ed.)  467,  note.  1  Jarm. 
Wills  (6th  ed.)  314.  2  Jarm.  Willa 
(6th  ed.)  1466,  note. 

1  2  Y.  &  C.  C.  237. 


392  THE   BULB   AGAINST   PERPETUITIES. 

Knight  Bruce  excluded  expressly  the  question  of  remoteness 
from  consideration.  The  case  is  interesting  as  showing  that 
counsel  thought  the  vice  of  the  trusts  in  Southampton  v.  Hert- 
ford and  Marshall  v.  Holloway  was  that  the  object  of  the  trust 
was  too  remote,  and  that  when  tenant  in  tail  in  possession  had 
a  vested  interest  in  the  fund  a  trust  for  accumulation  was 
unobjectionable.1 

§466.  Browne  v.  Stoughton?  A  testator  devised  land  to 
trustees  and  their  heirs  in  trust  for  A.  for  life,  and  on  his 
death  in  trust  for  his  first  and  other  sons  in  tail  male,  and 
declared  that  if  and  so  long  as  any  person  for  the  time  being 
beneficially  entitled  to  the  possession  of  the  estates  devised 
should  be  under  twenty-one,  the  trustees  should  receive  the 
rents,  apply  a  competent  part  to  the  maintenance  of  such 
person,  and  invest  the  residue  to  accumulate  at  compound 
interest,  and  then  to  invest  the  same  in  land  to  be  approved 
of  in  writing  by  the  person  who  would  be  tenant  for  life  or 
in  tail  male  thereof  if  purchased,  if  such  person  should  be  of 
age;  but  if  such  person  should  be  under  age,  then  at  the  dis- 
cretion of  the  trustees,  —  the  said  land  to  be  settled  as  near  as 
possible  on  the  trusts  of  the  land  by  the  will  devised.  The 
counsel  in  favor  of  the  accumulation  clause  distinguished  the 
case  from  Southampton  v.  Hertford,  on  the  ground  that  the 
trust  was  bad  in  that  case  because  the  destination  of  the  accu- 
mulated fund  was  too  remote.  But  Shadwell,  V.  C.,  held  that 
the  clause  in  the  case  before  him  was  void  for  remoteness,  say- 
ing: "It  never  occurred  to  my  mind  that  the  case  of  Lord 
Southampton  v.  The  Marquis  of  Hertford  was  determined  with 
reference  to  what  was  to  be  done  with  the  fund  accumulated; 
and  Lord  Eldon's  language  in  Marshall  v.  Holloway  is  express 
and  clear." 

§467.  Mr.  Lewis8  has  given  an  elaborate  criticism  on 
Browne  v.  Stoughton.  He  contends  that  the  distinction  taken 

1  See  Lewis,  Perp.  Suppl.  190,  f  14  Sim.  369. 

191;  3  Dav.  Free.  Conv.  (3d  ed.)  »  Perp.  Suppl.  174-190. 

408,  note;  Mareden,  Perp.  166. 


UMITATIONS  AFTER  ESTATES  TAIL.  393 

by  counsel  between  that  case  and  Southampton  v.  Hertford 
was  sound;  that  in  Browne  v.  Stoughton  the  tenant  in  tail 
had  a  vested  interest  in  the  fund  to  be  accumulated,  while  in 
Southampton  v.  Hertford  he  had  not.  Mr.  Lewis's  view  was 
in  turn  criticised  by  a  writer  in  the  Jurist,1  and  Browne  v. 
Stoughton  was  followed,  by  Wood,  V.  C.,  in  the  substan- 
tially similar  case  of  Turvin  v.  Newcome,*  and  still  later  in 
Ireland,  by  Chatterton,  V.  C.,  in  Cochrane  v.  Cochrane,3 
and  the  late  text-books  seem  to  consider  the  law  as  settled 
accordingly.4 

§  468.  But,  notwithstanding,  Mr.  Lewis's  arguments  do 
not  seem  to  have  ever  been  fairly  met,  and  it  is  to  be  ob- 
served that  the  question  has  never  come  for  decision  before  the 
Court  of  Appeal.6 

§  468  a.  But  in  In  re  Stamford 6  Wanington,  J.,  followed 
Browne  v.  Stoughton,  and  although  the  Court  of  Appeal  reversed 
the  decision  on  the  ground  that  the  trust  in  question  did  not 
precede  the  estate  tail,  Fletcher-Moulton,  L.  J.,  said  of  Browne 
v.  Stoughton:  "I  am  aware  that  it  has  been  subjected  to  severe 
criticism  by  very  learned  conveyancers,  but  it  was  followed  by 

1  3  Jur.  N.  s.,  pt.  2,  181.  See  3  Dav.  Free.  Conv.  (3d  ed.) 

2  3  K.  &  J.  16.    Wood,  V.  C.,  466,  note;  Sugd.  Law  of  Prop.  349; 
was  in  error  in  saying,  3  K.  &  J.  18,  Floyer  v.  Bankes,  L.  R.  8  Eq.  115; 
that  while  in  Turvin  v.  Newcome  §  505,  post.    In  Scarisbrick  v.  Skel- 
the  legal  estate  was  vested  in  trus-  mersdale,  17  Sim.  187,  a  trust  to 
tees,  in  Browne  v.  Stoughton  it  was  accumulate  during  minorities  was 
not.  In  both  cases  the  estates  were  held  bad,  although  the  accumula- 
in  trust.  tions  were  to  be  made  for  the  pur- 

1  11  L.  R.  Ir.  361.     Trevelyan  pose  of  paying  debts.    This  would 

v.  Trevelyan,  53  L.  T.  R.  853,  was  seem  to  be  wrong,  at  any  rate.    See 

said  by  Bacon,  V.  C.,  to  be  gov-  §  676,  post;  Marsden,  Perp.  158;  3 

erned  by   Cochrane  v.   Cochrane,  Dav.    Prec.    Conv.    (3d   ed.)    468, 

but,  in  Trevelyan  v.  Trevelyan,  the  note. 

power  to   call   for   a   conveyance          •  And  see  Briggs  v.  Oxford,  1 

might   exist   at   a  remote   period,  De  G.  M.  &  G.  363;  3  Dav.  Prec. 

and  might  not  be  within  the  con-  Conv.  (3d  ed.)  468,  469,  note, 
trol  of  the  owner  of  the  land.    See          •  [1911]  1  Ch.  255;  [1912]  1  Ch. 

§  493,  post.  (C.  A.)  343.     See  27  Law  Quart. 

4  Marsden,  Perp.  156,  157,  160.  Rev.  150,  156. 
1  Jann.  Wills  (6th  ed.)  313-316. 


394  THE  RULE   AGAINST  PERPETUITIES. 

Wood,  V.  C.,  in  Turvin  v.  Newcome,  and  has  since  been  ap- 
proved of  by  other  judges  and  by  leading  text-writers.  To 
refuse  to  follow  it  in  a  like  case  might  unsettle  titles,  and 
I  think  it  ought  now  to  be  considered  as  laying  down  the  law 
correctly." 

§469.  Whatever  may  be  the  law  on  trusts  for  accumula- 
tion during  the  minorities  of  tenants  in  tail,  there  is  no  doubt 
that  Wickens,  V.  C.,  in  Sykes  v.  Sykes,1  went  a  step  beyond 
any  previous  case  in  holding  a  trust  void  where  the  object  of 
the  trust  could  be  destroyed  by  the  tenant  in  tail;  and  it  is  sub- 
mitted the  step  was  in  the  wrong  direction.  In  that  case  land 
was  settled  on  the  testator's  sons  successively  for  life,  with 
remainder  to  their  issue  respectively  in  tail,  subject  to  a  term 
for  five  hundred  years  to  trustees  in  trust  in  any  one  or  more 
of  the  testator's  younger  sons  or  their  issue  should  become 
seised  in  possession  of  the  estate  by  virtue  of  the  will,  then  to 
raise  certain  sums.  The  trust  was  held  void  for  remoteness. 
The  Vice-Chancellor  said:  "It  seems  to  me,  on  consideration, 
that  this  case  is  undistinguishable  in  principle  from  that  of 
Case  v.  Drosier.  .  .  .  That  being  so,  I  ought  not,  I  think,  to  go 
into  the  general  question  of  principle,  which,  but  for  the  de- 
cision in  Case  v.  Drosier,  might  have  been  a  very  nice  one; 
nor  to  seek  to  distinguish  the  present  case  from  it  on  grounds 
which,  if  they  had  existed  in  it,  would  not,  as  I  read  the  judg- 
ments of  Lord  Langdale  and  of  Lord  Cottenham,  have  altered 
their  decisions." 

§470.  This  seems  a  strange  remark.  The  distinction  be- 
tween the  case  before  the  learned  Vice-Chancellor  and  Case  v. 
Drosier  is  obvious  and  essential.  Barring  the  estate  tail  in 
Case  v.  Drosier  would  not  have  affected  the  trusts  of  the  term,2 
while  in  Sykes  v.  Sykes  barring  the  estate  tail  would  have  ren- 
dered it  impossible  to  carry  them  into  effect.8 

1  L.  R.  13  Eq.  66.  ed.)  577,  578,  note,  1053;  4  Dav. 

*  5  458,  ante.  Free.  Conv.   (3d  ed.)  Corrigenda, 

1  See  Mareden,  Perp.  141,  153,  xlv. 
154,  160;  3  Dav.  Free.  Conv.  (3d 


LIMITATIONS  AFTER  ESTATES   TAIL.  395 

§  471.  The  present  condition  of  the  English  authorities  is 
this:  1.  The  trusts  of  a  term  prior  to  an  estate  tail,  for  the 
accumulation  of  rents  during  the  minorities  of  successive  ten- 
ants in  tail,  are  void  for  remoteness,  though  such  tenants  in 
tail  have  a  vested  interest  in  the  accumulations.1  2.  The 
trusts  of  a  term  prior  to  estates  tail  may  be  too  remote  though 
to  arise  on  contingencies  which  must  happen,  if  at  all,  during 
the  continuance  of  the  estates  tail,  and  which  a  barring  of  the 
estates  tail  would  render  impossible.  Sykes  v.  Sykes*  is  the 
only  authority  for  this  second  proposition.  In  favor  of  it,  it 
may  be  said  that  it  seems  indistinguishable  in  principle  from 
the  first  proposition.  Against  it,  it  may  be  said  that  the  cases 
under  the  first  proposition  form  an  anomalous  class  which 
should  not  be  enlarged.8 

§  471  a.  In  the  late  case  of  Longfield  v.  Bantry  *  an  estate 
X.  was  settled  in  strict  settlement  on  W.  A  testator  gave  the 
residue  of  his  estate  in  trust  to  purchase  land  and  settle  it  in 
the  same  manner  as  X.,  and  until  such  purchase  to  apply  the 
whole  or  any  part  of  the  income  to  the  improvement  of  the 
X.  estates.  Chatterton,  V.  C.,  following  an  unreported  Irish 
case  of  Clements  v.  Leitrim,  held  that  the  trust  was  good. 
The  Vice-Chancellor  thought  the  case  was  distinguishable 
from  Browne  v.  Stoughton 5  and  his  own  ruling  in  Cochrane  v. 
Cochrane.6  The  distinction  is  not  easy  to  perceive;  the  deci- 
sion certainly  shows  a  disposition  not  to  extend  the  doctrines 
of  those  cases. 

§  472.  If  Sykes  v.  Sykes  is  to  stand  as  law,  then  the  Eng- 
lish rule  will  be  that  the  question  of  remoteness  is  to  be  deter- 
mined by  the  fact  whether  a  term  precedes  or  follows  an 
estate  tail.  If  it  precedes,  it  is  indestructible,  and  may  there- 
fore be  too  remote.  If  it  follows,  it  is  destructible,  and  cannot 
be  void  for  remoteness.  But  the  true  question  would  seem 

1  §§  466-468,  ante.  *  15  L.  R.  IT.  101. 

1  §  469,  ante.  *  14  Sim.  369;  §  466,  ante. 

1  See   1  Jann.  Wills  (6th  ed.)  •  11  L.  R.  IT.  361;  §  467,  ante. 

315,  note. 


396  THE   RULE   AGAINST   PERPETUITIES. 

to  be,  not  whether  the  term  precedes  or  follows  the  estate  tail, 
but  whether  the  trusts  of  the  term  can  or  cannot  arise  after 
the  expiration  or  barring  of  the  estate  tail.  This  is  in  analogy 
with  the  law  of  remoteness  generally,  which  disregards  the 
form  for  the  substance,  and  does  not  avoid  limitations  which 
are  and  always  will  be  in  the  entire  control  of  the  owner  for 
the  time  being  of  the  property.  It  is  submitted  that  in  the 
very  improbable  event  of  such  a  case  arising  in  one  of  the 
United  States  where  estates  tail  still  exist,  the  decision  ought 
to  turn  on  whether  the  trusts  in  property  are  in  control  of  the 
tenant  in  tail  of  the  property,  and  not  on  the  order  of  the 
limitations.1 

1  See  25  Harv.  Law  Rev.  656. 


POWERS.  397 


CHAPTER  XV. 
POWERS. 

§  473.  IN  powers,  questions  of  remoteness  are  governed  by 
three  rules.  1.  If  a  power  can  be  exercised  at  a  time  beyond 
the  limits  of  the  Rule  against  Perpetuities,  it  is  bad.  2.  A 
power  which  cannot  be  exercised  beyond  the  limits  of  the  Rule 
against  Perpetuities  is  not  rendered  bad  by  the  fact  that  within 
its  terms  an  appointment  could  be  made  which  would  be  too 
remote.  3.  The  remoteness  of  an  appointment  depends  on  its 
distance  from  the  creation  and  not  from  the  exercise  of  the 
power.  The  first  two  rules  relate  to  the  creation  of  powers, 
the  third  rule  to  their  execution. 

§  474.  After  these  three  rules  there  remain  to  be  discussed : 
4.  The  effect  of  holding  appointments  void;  5.  Election. 

1.  If  a  Power  can  be  exercised  at  a  Time  beyond  the  Limits  of 
the  Rule  against  Perpetuities,  it  is  bad. 

§  474  a.  Sometimes  a  power  is  spoken  of  as  too  remote;  this 
is  a  natural, -but  it  is  not  an  exact,  mode  of  expression;  it  is  not 
the  power  which  is  too  remote,  but  the  estate  or  interest  ap- 
pointed by  it.  When  we  say  that  a  power  is  too  remote,  we 
mean  that  each  and  every  estate  or  interest  appointed  under 
it  is  on  a  contingency  which  may  happen  at  such  a  time  that 
the  estate  appointed  will  be  too  remote.  In  order  that  an 
estate  may  arise  upon  an  appointment  under  a  power,  it  is 
a  condition  precedent  that  the  power  be  exercised;  and  if  a 
power  can  be  exercised  more  than  twenty-one  years  after 
a  We  hi  being,  a  condition  precedent  to  the  estate  may  be  ful- 
filled at  such  a  time  that  the  estate  appointed  may  vest  at 
a  period  too  remote  under  the  Rule  against  Perpetuities. 


398  THE   BULB   AGAINST  PERPETUITIES. 

§  474  b.  It  is  to  be  observed  that  while  the  exercise  of  a  power 
is  a  condition  precedent  to  an  appointment  arising  under  it, 
it  may  not  be  the  only  condition  precedent,  and  if  there  is 
another  condition  precedent  which  may  not  be  fulfilled  until 
later  than  twenty-one  years  after  a  life  in  being,  the  appoint- 
ment will  be  too  remote.  So,  on  the  other  hand,  if  the  other 
condition  precedent  must  be  fulfilled,  if  at  all,  within  a  life  in 
being  and  twenty-one  years,  so  that  any  interest  appointed 
must  vest,  if  at  all,  within  that  period,  then  the  fact  that  the 
power  is  to  an  unborn  person  will  not  render  an  appointment 
under  it  too  remote.  See  the  following  sections  and  also 
§§  958  et  seq.,  post. 

§  475.  Therefore  when  a  donee  of  a  power  may,  by  possi- 
bility, be  alive  beyond  the  limits  of  the  Rule,1  and  at  the 
same  time  the  contingency  on  which  it  is  directed  that  an  in- 
terest appointed  under  the  power  shall  vest  may  also  arise 
beyond  the  limits,  the  power  is  void. 

§  476.  When,  however,  either  such  contingency  or  the  life  of 
the  donee  of  the  power  is  confined  within  the  limits  of  the  Rule, 
the  power  is  valid.  Thus,  although  there  is  no  limit  on  the 
series  of  persons  who  can  exercise  a  power,  yet  if  the  contin- 
gency on  which  the  creator  of  the  power  has  directed  that 
any  interest  appointed  under  the  power  shall  vest  must  fall 
within  twenty-one  years  after  lives  in  being  at  its  creation,  it 
is  good.  For  instance,  if  a  power  is  given  to  A.  and  his  heirs 
to  appoint  to  B.,  a  person  living  at  the  creation  of  the  power,  it 
is  good.  So,  although  the  execution  of  a  power  is  not  limited 
in  terms  to  any  time,  yet  if  the  sole  donee  of  the  power  is  liv- 
ing at  the  time  of  its  creation,  as  it  must  be  exercised,  if  at  all, 
in  his  lifetime,  it  is  not  void.2  This  last  proposition  must, 

1  Re  Hargreaves,  43  Ch.  D.  401.  meat  was  held  to  be  lawfully  exer- 

Hartson  v.  Elden,  50  N.  J.  Eq.  522,  cised  by  his  daughter,  who  was  his 

526.     See  Johnston's  Estate,   185  heir.     The  question  of  remoteness 

Pa.  179,  189.    In  Grange  v .  living,  was  not  raised  or  considered,  and 

O.  Bridg.  107  (1665),  a  power  to  a  on  this  point  the  case  is  not  law. 

settlor  or  any  of  the  heirs  of  his  Sugd.  Pow.  (8th  ed.)  152. 
body  to  revoke  the  uses  of  a  settle-          *  Lewis   Perp.  554.     In  re  De 


POWERS. 


399 


however,  be  confined  to  those  cases  where  the  power  is  to  be 
executed  on  or  after  the  event  which  renders  the  execution  of 
the  power  valid.  If  the  validity  of  the  execution  of  a  power  is 
to  depend  upon  a  contingency  which  will,  or  may,  occur  after 
the  donee  has  exercised  the  power,  then  the  power  will  be  void. 
Thus  a  power  to  A.  to  appoint  to  all  of  his  grandchildren  who 
are  living  twenty-five  years  after  his  death  is  bad.1 

§ 476  a.  In  Bristow  v.  Boothby*  by  a  marriage  settlement, 
land,  after  the  death  of  husband  and  wife,  was  given,  on  failure 
of  issue  generally  of  the  marriage  (which  might  happen  subse- 
quently to  the  estates  in  tail  male  created  by  the  settlement), 
to  such  person  as  the  wife  might,  in  the  lifetime  of  the  hus- 
band, appoint.  The  wife,  by  will,  there  being  at  her  death  no 
issue  of  the  marriage,3  appointed  to  A.  It  was  held  that  A. 
did  not  take.  The  law,  therefore,  is  that  if  the  instrument 
creating  the  power  directs  that  the  power  shall  have  its  effect 
only  upon  a  contingency  which  may  be  too  remote,  the  power 


Sommery,  [1912]  2  Ch.  622,  630, 
631.  Collins  v.  Foley,  63  Md.  158. 
See  Lawrence's  Estate,  136  Pa. 
354,  364. 

1  See  §§  474  a,  474  b,  ante.  In 
Blight  v.  Hartnoll,  19  Ch.  D.  294, 
a  testatrix  directed  that  property 
should  be  sold  on  an  event  which 
might  be  too  remote,  and  the  pro- 
ceeds divided  among  her  grand- 
children then  living,  as  A.  should 
appoint.  A.  appointed  before  the 
happening  of  the  event;  Fry,  J., 
held  that  the  power  was  bad  as  vio- 
lating the  Rule  against  Perpetuities, 
and  also  that  the  appointment  was 
bad  because  it  could  not  be  made 
until  after  the  happening  of  the 
event.  But  if  the  second  ground 
was  good,  it  followed  that  the  power 
could  not  be  exercised  unless  the 
event  happened  in  the  lifetime  of 
A.,  and  was  therefore  not  objec- 
tionable on  the  ground  of  remote- 


ness. See  Marsden,  Perp.  238, 
239. 

Mr.  Sweet,  1  Jarm.  Wills  (6th 
ed.)  311,  says:  "It  is  submitted 
that  the  first  ground  given  by  Fry, 
J.,  is  unsound  and  that  the  case 
was  rightly  decided  on  the  second 
ground.  If,  however,  the  property 
had  been  sold  during  the  lifetime 
of  [A.],  it  seems  clear  that  she  might 
have  made  a  valid  appointment  to 
any  of  the  testatrix's  grandchil- 
dren. If  so,  it  follows  that  a  power 
of  appointment  may  be  effectual 
or  ineffectual  according  to  the 
events  which  happen  after  its 
creation."  But  it  is  submitted 
that  the  case  of  Bristow  v.  Boothby, 
§  476  a,  post,  shows  these  last  two 
sentences  are  incorrect. 

*  2  S.  &  St.  465;  4  L.  J.  o.  s. 
Ch.  88.  See  In  re  Norton,  [1911] 
2  Ch.  27. 

8  See  4  L.  J.  o.  s.  Ch.  89. 


400  THE   RULE   AGAINST  PERPETUITIES. 

is  bad,  db  initio,  and  does  not  become  good  by  the  contingency 
in  fact  occurring  before  the  appointment.  And  the  power  is 
not  made  good  by  an  appointment  made  under  it  being  condi- 
tioned upon  the  happening  of  the  contingency  within  the  limits 
of  the  Rule  against  Perpetuities.  Or  to  express  it  in  other 
words,  if  a  limitation  on  a  certain  contingency  would  be  too 
remote,  a  power  whose  operation  is  conditioned  on  that  con- 
tingency is  void,  although  an  appointment  might  be  made 
under  it  which  must  certainly  take  effect  within  the  limits  of 
the  Rule  against  Perpetuities.1 

§  476  6.  Suppose,  however,  the  donee  of  a  power  is  a  living 
person,  and  makes  an  appointment  which  must  vest  at 
his  death  but  will  not  come  into  possession  until  the  death  of 
an  unborn  person,  to  whom  a  good  life  estate  has  been  limited, 
is  that  appointment  bad?  It  would  seem  not.  For  instance, 
suppose  property  is  devised  to  a  woman  for  life,  on  her  death 
to  any  husband  whom  she  may  leave  (and  who  may  be  born 
after  the  testator's  death)  and  on  the  death  of  the  survivor  of 
herself  and  her  husband  to  her  issue  as  she  may  appoint,  and 
she  appoints  to  her  children.  Here,  though  the  estates  ap- 
pointed to  the  children  will  not  come  into  possession  till  the 
death  of  her  husband,  they  will  vest  on  her  death,  and,  there- 
fore, will  not  be  too  remote.  For  if  the  original  devise  had  been 
to  her  for  life,  remainder  to  any  husband  she  might  have  for 
life,  remainder  to  her  children  in  fee,  the  remainder  to  the 
children  would  not  have  been  too  remote.2 

§  477.  A  power  given  to  the  unborn  child  of  a  living  person 
is  void; 3  that  is,  if  it  is  a  power  to  be  exercised  by  will  only,  or 

1  Marsden,   Perp.  237.     Gener-  appoint,   if  the  contingency  hap- 

ally  in  such  a  case  the  intention  pens  in  the  life  of  the  donee.    See 

will  be  clear  that  the  power  is  to  Blight  v.  Hartnoll,  19  Ch.  D.  294; 

be  exercised  only  after  the  contin-  Marsden,    Perp.    238,    239.      Cf. 

gency  has  occurred.    When  this  is  Bartlett  v.  Sears,  81  Conn.  34. 
so,  the  power  is  good,  if  the  donee  *  See  In  re  Norton,  [1911]  2  Ch. 

is  a  person  living  at  the  time  of  27.     Cf .  §  522,  note,  post. 
the  creation  of  the  power;  for  the          *  Except  as  indicated  in  §§  474  &, 

power  is  then,  in  truth,  a  power  to  476,  ante. 


POWERS.  401 

a  special  power  to  be  exercised  by  deed.1  But  if  such  unborn 
child  has  a  general  power  to  appoint  by  deed,  he  has  the 
absolute  control,  exactly  as  if  he  had  the  fee,  since  he  can  at 
once  appoint  to  himself.  Such  general  power  to  appoint  by  deed 
is  therefore  not  obnoxious  to  the  Rule  against  Perpetuities.2 
If,  however,  a  condition  precedent  to  the  exercise  of  a  general 
power  by  an  unborn  child  is  the  happening  of  an  event  which 
may  not  occur  till  too  remote  a  period,  the  power  is  bad.  Thus 
such  a  power  is  void  when  it  can  be  exercised  only  with  the 
consent  of  trustees,3  or  only  upon  the  child's  marriage.4 

§  478.  Although  no  tune  is  limited  for  the  execution  of  a 
power,  yet  if  the  law  requires  it  to  be  exercised  within  a  rea- 
sonable time  or  not  at  all,  and  if  any  time  over  twenty-one 
years  is  not  a  reasonable  time,  then  the  power  is  good,  for  it 
can  be  exercised  only  within  limits  which  are  not  too  remote.5 

§479.  The  same  rule  as  to  the  separableness  of  powers 
should  govern  as  obtains  in  reference  to  the  separableness  of 
direct  limitations.6  That  rule  is  that  when  the  testator  or 
settlor  has  separated  the  limitations  they  may  be  considered 
apart;  but  when  he  has  not  separated  them  they  must  stand 
or  fall  together.  So  when  a  testator  or  settlor  has  given  dis- 
tinct powers,  one  may  be  too  remote,  and  the  other  not;  but 
when  he  has  not  separated  them,  the  law  will  not  separate 
them  for  him. 

1  Wollaston   v.  King,    L.  R.  8  See  Peters  v.  Lewes  &  East  Grin- 

Eq.  165.    Morgan  v.  Gronow,  L.  R.  stead  R.  Co.,  18  Ch.  D.  429,  434; 

16  Eq.  1,  9,  10.  Re  Tweedie,  27  Ch.  D.  315;  Bar- 

1  Bray  v.  Hammersley,  3   Sim.  ber  v.  Pittsburgh,  &c.  R.  Co.  166 

513;  sub  nom.  Bray  v.  Bree,  2  Cl.  &  U.  S.  83,  108;  Cooper's  Estate,  150 

F.  453;  8  Bligh,  N.  s.  568.     See  Pa.  St.  576;  Eary  v.  Raines,  80  S. 

Lawrence's  Estate,    136  Pa.   354,  E.  Rep.  (W.  Va.)  806;  §  491,  post; 

364;  §  524,  post;  Sugd.  Pow.  (8th  Marsden,    Perp.    242;     §§   214  a- 

ed.)  394  et  seq.,  683;  Lewis,  Perp.  214  e,  ante;  §§  617,  618,  621-624, 

483;  Farwell,  Pow.  (2d  ed.)  292.  post.    Cf.  Holder  v.  Preston,  2  Wils. 

J  Webb  v.  Sadler,  L.  R.  14  Eq.  400. 
533;  L.  R.  8  Ch.  419;  §  440,  ante.  •  See  Chap.  IX.,  ante.    Cf.  In 

4  Morgan  v.  Gronow,  !L.  R.  16  re  Raphael,  3  N.  S.  Wales   State 

Eq.  1,  10.     Marsden,  Perp.  236.  Rep.  196. 

6  Re  Sudeley,  [1894]  1  Ch.  334. 


402  THE   RULE   AGAINST  PERPETUITIES. 

§  480.  As  in  the  case  of  direct  limitations,  the  application 
of  this  rule  to  powers  may  often  be  difficult.  Attenborough  v. 
Attenborough  1  is  near  the  line.  In  that  case  a  testator  devised 
property  to  his  brother  James,  his  heirs,  executors,  and  admin- 
istrators, in  trust;  and  he  directed  "my  trustees"  to  set  apart 
from  the  property  £5,000,  "and  at  any  time  or  times,  at  their 
absolute  discretion,"  to  give  or  lend  any  part  of  it  to  his  nephew 
or  any  of  his  nephew's  children  in  such  manner  "as  to  my  said 
brother  or  other  my  trustees  in  his  or  their  absolute  discre- 
tion shall  seem  meet,  yet  so  that  it  shall  not  be  imperative  on 
my  said  brother  James  or  other  my  trustees"  to  make  any 
gift  or  loan  to  the  nephew;  "that  my  said  brother  James 
and  other  my  trustees  shall  not  make  any  advance"  to  the 
nephew  unless  he  reform  his  habits  "to  the  satisfaction  of 
my  said  brother  James  or  other  my  said  trustees;  but  my 
trustees  may  make"  a  gift  or  loan  to  the  nephew's  children, 
without  proof  of  their  legitimacy;  that  "my  said  trustees," 
when  the  nephew  and  his  children  are  dead,  are  empowered 
to  distribute  said  sum  amongst  other  nephews;  that  his  brother 
should  be  executor,  and  that  any  vacancy  or  vacancies  in  the 
trusteeship  might  be  supplied  by  the  trustees  and  executors 
for  the  tune  being,  or  by  the  acting  executors  or  administra- 
tors of  the  person  who  should  have  last  died.  It  was  contended 
that  the  power  was  too  remote,  and  that  therefore  the  brother 
James  could  not  validly  exercise  it;  but  Wood,  V.  C.,  said: 
"As  regards  the  creation  of  the  power  and  the  persons  in  whom 
it  is  vested,  it  is  to  be  exercised  by  James,  the  testator's  brother, 
or  other  the  trustees  of  this  will.  I  think  it  may  properly  be 
divided  and  considered  as  two  distinct  powers,  one  vested  in 
James,  and  the  other  in  the  persons  coming  in  as  his  successors 
in  the  trust  under  this  will.  Therefore,  James  the  brother  is 
a  person  who  clearly  has  a  right  to  make  a  valid  appointment, 
whatever  might  be  said  if  any  succeeding  trustee  had  attempted 
to  exercise  this  power."  2 

1  1  K.  &  J.  296.  bleness  of  powers,  see  In  re  Bowles, 

*  For  other  cases  on  the  separa-      [1905]  1  Ch.  371;  In  re  Davies  & 


POWERS.  403 

§  481.  It  was  suggested  by  Lord  Cottenham,  C.,  in  Wood 
v.  White,1  that  a  power  exercisable,  according  to  its  terms,  be- 
yond the  limits  of  the  Rule  against  Perpetuities  might  be 
validly  exercised  within  those  limits.  In  that  case  there  was 
a  power  to  sell  given  to  trustees,  and  the  Chancellor  held  that 
as  the  trust  must  terminate  within  the  required  limits,  the 
power  was  unobjectionable;  but  he  added:  "If  it  were  other- 
wise, the  sale  in  question  is  within  the  permitted  period,  and 
there  would  not,  I  think,  be  much  doubt  of  its  validity  until 
the  expiration  of  that  period."  2 

§  482.  This  idea  seems  to  have  sprung  from  the  feeling 
that  the  powers  of  sale  and  leasing  usual  in  settlements  must 
be  supported,  and  could  only  be  supported  in  this  manner,  it 
not  being  yet  clearly  apprehended  that  such  powers  were 
wholly  unobjectionable,  because  destructible.3 

§ 483.  But  Lord  Eldon,  in  Ware  v.  Polhill*  said  that  if  a 
power  "is  bad  to  the  extent  in  which  it  is  given,  you  cannot 
model  it  to  make  it  good.  I  think,  the  soundest  ground  is, 
that  the  power  is  bad."  This  was  followed  by  Wigram,  V.  C., 
in  Ferrand  v.  Wilson; 5  and  now,  when  it  is  well  settled  that 

Kent's  Contract,  [1910]  2  Ch.  35;  J  Lewis,  Perp.  541  ei  seq.,  556. 

In   re  Norton,   [1911]   2    Ch.   27;  Sugd.  Pow.   (8th  ed.)  848;   §484, 

Hutchinson   v.   Tottenham,  [1898]  post. 

1   I.   R.  403,    §  522,    note,    post;  *  11  Ves.  257,  283. 

Bandon  v.  Moreland,  [1910]  1  I.  R.  •  4    Hare,    344,     376-381.      It 

220;    In  re  De  Sommery,  [1912]  2  should  be  remarked,  however,  that 

Ch.  622,  631,  632;    Miles  v.  Har-  the  powers  in  Ware  v.  Polhill  and 

ford,  12  Ch.  D.  691;  §  349,  ante.  Ferrand  v.  Wilson  would  probably 

1  4  Myl.  &  Cr.  460,  482.  at  the  present  day  be  considered 

1  And   so   accordingly  2  Prest.  destructible,     and     therefore     not 

Abs.   158.     But  see  Lewis,   Perp.  open  at  all  to  the  objection  of  re- 

553,  554.     Lord  Langdale,  M.  R.,  moteness;    §§495-504,    post;    and 

before   whom   the   case   originally  that  Wigram,  V.  C.,  in  Ferrand  v. 

came,  is  said  to  have  "intimated  Wilson,  was  inclined  to  think  Lord 

serious  doubts  whether  the  power  Eldon's  statement  too  broad.    See 

might  not  be  void  ab  origins,  either  Lewis,    Perp.    542   et   seq.;     Sugd. 

as  tending  to  a  perpetuity,  or  as  Pow.  (8th  ed.)  846  et  seq. 
being  incapable  of  being  modelled 
and  distributed."     4  Myl.  &  Cr. 
470,  471. 


404  THE   RULE   AGAINST  PERPETUITIES. 

the  ordinary  powers  to  trustees  are  unobjectionable,1  there 
seems  no  sufficient  reason  for  such  a  departure  from  the 
doctrines  and  analogies  of  the  Rule  against  Perpetuities  as 
would  be  involved  in  sustaining,  in  part,  powers  the  exercise 
of  which  might  be  too  remote.2  To  the  vesting  of  an  inter- 
est under  a  power,  the  exercise  of  that  power  is  a  condition 
precedent;  and  if  such  exercise  may  take  place  beyond  the 
limits  fixed  by  the  Rule,  the  interest  is  too  remote.  To  reach 
the  opposite  conclusion,  it  is  necessary  to  take  some  arbitrary 
limit  (which  the  settlor  or  testator  has  not  suggested),  and  to 
say  that  if  the  condition  happens  to  fall  within  this  arbitrary 
limit  it  is  good.  The  Rule  against  Perpetuities  says:  "A 
power  can  be  exercised  provided  it  is  one  that  by  its  terms 
must  be  exercised  at  latest  within  twenty-one  years  after  the 
death  of  all  the  persons  who  were  alive  when  the  power  was 
created."  This  proposed  modification  says:  "The  power  can 
be  exercised  provided  it  is  exercised  before  something  happens." 
What  is  the  something?  The  death  of  the  first  donee  of  the 
power?  Twenty-one  years  after  the  death  of  the  first  donee? 
The  death  of  the  survivor  of  those  donees  who  were  alive  at 
the  testator's  death?  Twenty-one  years  after  the  death  of 
such  survivor?  The  death  of  the  first  life  tenant?  Twenty- 
one  years  after  the  death  of  the  first  life  tenant?  The  death 
of  the  survivor  of  the  life  tenants?  Twenty-one  years  after 
the  death  of  such  survivor?  The  death  of  an  appointee  who 
was  alive  at  the  death  of  the  testator?  The  death  of  the 
survivor  of  the  first  donee  and  the  first  life  tenant?  or  twenty- 
one  years  after?  The  death  of  the  survivor  of  the  first  donee 
and  all  the  life  tenants?  or  twenty-one  years  after?  The  death 
of  the  survivor  of  those  donees  who  were  alive  at  the  testator's 
death  and  of  the  first  life  tenant?  or  twenty-one  years  after? 
The  death  of  the  survivor  of  those  donees  who  were  alive  at  the 
testator's  death  and  of  all  the  life  tenants?  or  twenty-one 

1  §§  498,  499,  506,  507,  post.  Third  Rep.  Real  Prop.  Comm.  34, 

1  Lewis,  Perp.  556-560;  Suppl.      42,  43.    See  Hale  v.  Pew,  25  Beav. 
194-196.      Marsden,    Perp.    240.      335. 


POWERS.  405 

years  after?  and  so  on  indefinitely.  What  arbitrary  limit 
is  the  Court  to  select?  l 

§  484.  As  has  been  said,  the  inconvenience  of  abridging  the 
ordinary  powers  of  trustees  was  the  only  thing  that  excused 
a  belief  in  the  partial  validity  of  powers;  and  now  that  it  is 
clearly  seen  how  such  ordinary  powers  can  be  sustained  in  full 
accordance  with  the  Rule  against  Perpetuities,2  there  remains 
no  reason  to  introduce  an  exception  into  the  harmonious  work- 
ing of  the  Rule,  which  can  only  lead  to  confusion. 

§  485.  Kenrick  v.  Dempsey  3  must  therefore  be  deemed  to 
have  been  wrongly  decided.  There  K.  conveyed  land  to  D., 
and  D.  gave  a  bond  to  K.  conditioned  to  pay  the  rents  to  K.; 
but  if  D.,  his  heirs,  executors,  administrators,  or  assigns,  should 
pay  K.,  his  heirs,  executors,  or  assigns,  the  fair  price  of  the 
land,  the  obligation  to  be  void.  K.  filed  a  bill  for  a  recon- 
veyance, alleging  that  the  right  to  buy  given  to  D.  was  void 
for  remoteness.  Esten,  V.  C.,  and  Spragge,  V.  C.,  thought  that 
here  was  a  power  which  was  good  for  the  life  of  D.  and  twenty- 
one  years  more,  and  a  reconveyance  was  refused.4 

§  486.  A  power  to  sell  to  raise  money  for  paying  debts  or 
legacies  is  not  obnoxious  to  the  Rule  against  Perpetuities,  both 
because  such  power  must  be  exercised  within  a  reasonable 
time,5  and  also  because  it  creates  a  charge  in  favor  of  creditors 
or  legatees  which  gives  them  a  present  right  in  the  property  to 
have  it  sold  at  once  without  regard  to  the  wish  of  any  donee 
of  the  power  to  postpone  it.6 

§  487.  The  former  practice  of  English  conveyancers  in 
drawing  settlements  was  to  give  trustees  powers  of  sale  and 
exchange  and  of  leasing,  without  imposing  any  limits  of  time, 
and  "hah*  the  titles  in  the  kingdom  depended  on  the  validity  of 

See  Lewis,  Perp.  559,  560.  note.    Lewis,  Perp.  558.    Mareden, 

§§  498,  499,  506,  507,  post.  Perp.  247.    Third  Rep.  Real  Prop. 

5  Grant,  584.  Comm.  35.     Silk  v.  Prime,  1  Bro. 

See   Haaker   v.   Summers,  10      C.  C.  138,  note.    See  Briggs  v.  Ox- 

Vict.  L.  R.  Eq.  204.  ford,  1  De  G.  M.  &  G.  363;  §  504, 

§  478,  ante.  post. 
1  Pow.  Dev.  (Jarm.  ed.)  250, 


406  THE   RULE   AGAINST  PERPETUITIES. 

such  powers."  l  Since  the  decision  in  Ware  v.  Polhitt,*  it  has 
been  the  ordinary  practice  to  limit  the  exercise  of  powers  of 
sale  and  exchange  in  a  settlement  to  lives  in  being  and 
twenty-one  years.3  But,  nevertheless,  it  is  now  perfectly  well 
established  that  no  limits  are  necessary  in  giving  to  trustees 
under  ordinary  settlements  and  wills  the  power  to  sell  and  ex- 
change or  to  make  leases.  Hence  it  has  been  supposed  that 
such  powers  form  exceptions  to  the  Rule  against  Perpetuities; 
but  it  is  now  generally  recognized  that  there  is  no  exception, 
though  it  was  some  time  before  the  matter  was  placed  in  a 
clear  light.4 

§488.  Two  unsatisfactory  reasons  have  been  given  why 
these  unlimited  powers  do  not  violate  the  Rule  against  Perpe- 
tuities. First :  That  the  exercise  of  a  power  to  sell  and  exchange 
is  merely  a  change  of  title  and  not  a  destruction  of  interest. 
"This  is,  at  most,  an  equitable  answer  to  a  legal  objection. 
When  Blackacre,  entailed  upon  A.,  is  sold  under  a  power  para- 
mount, A.'s  estate  tail  is  defeated,  his  interest  is  destroyed,  as 
to  Blackacre,  both  at  law  and  in  equity;  and  to  say  that  other 
land  (possibly  leasehold,  not  capable  of  an  entail)  may  be 
bought  and  substituted,  under  trusts  declared  of  the  money, 
cannot  be  a  valid  argument  in  support  of  the  legal  power  over 
the  land."6 

§489.  Second:  That  such  a  power  is  favorable  to  aliena- 
tion instead  of  restraining  it.  But  the  power  does  restrain 
alienation  on  the  part  of  the  owner  of  the  fee.  "A  power  of 
sale,  suspended  indefinitely  over  the  fee,  is  open  to  the  same 

1  Sugd.  Pow.  (8th  ed.)  848.    See  194  et  seq.    Sugd.  Pow.  (8th  ed.) 

1  Hayes,  Conv.  (5th  ed.)  497.  846  et  seq.     Mareden,  Perp.  241- 

1  11  Ves.  257.  246.     1  Jarm.  Wills  (6th  ed.)  311, 

1  3  Dav.  Prec.  Conv.  (3d  ed.)  312.     9  Byth.  Conv.   (Jarm.  ed.) 

483,  note,  570.    Challis,  Real  Prop.  456,   note.     3   Dav.   Prec.   Conv. 

(3d    ed.)    194.     With    powers   of  (3d  ed.)  577. 

leasing  it  has  not  been  usual  to  *  1  Hayes,  Conv.  (5th  ed.)  498. 

put   these   limits.     3    Dav.  Prec.  Lewis,  Perp.  547.    See  1  Pow.  Dev. 

Conv.  (3d  ed.)  483,  note,  570.     1  (Jarm.  ed.)  251,  note;  Sugd.  Pow. 

Chance,  Pow.  §  318.  (8th  ed.)  848. 

*  Lewis,    Perp.    c.    25;    Suppl. 


POWERS.  407 

objection  as  an  executory  devise  or  springing  use,  to  take  effect 
whenever  A.  or  his  heirs  shall  do  a  given  act."  *  "It  enables 
the  trustees  to  sell,  but  the  owner  in  fee,  who  would  otherwise 
be  able  to  sell,  is  incapacitated."  2 

§  490.  The  true  reason  for  holding  such  powers  good  is  that 
the  trusts  to  which  they  are  attached  must  come  to  an  end,  or 
can  be  destroyed,  within  the  limits  fixed  by  the  Rule  against 
Perpetuities.  This  is  the  case  in  ordinary  settlements  or 
wills  where  the  property  is  settled  or  devised  for  life  with  re- 
mainders in  tail,  or  for  life  only,  as  is  more  common  in  America. 
The  life  estates  are  usually  for  lives  in  being;  the  estates  tail  can 
be  barred;  and  when,  by  the  expiration  of  the  Me  estates  and 
estates  tail  or  by  the  barring  of  the  estates  tail,  the  ultimate 
remainder-man  in  fee  is  entitled  to  possession,  he  either  gets 
the  legal  estate  or  he  is  entitled  to  call  upon  the  trustee  for  a 
conveyance  of  it.  If  he  gets  the  legal  title,  the  power  at  once 
disappears.3  If  he  has  only  the  equitable  fee,  but  is  entitled  to 
call  for  the  legal  estate  from  the  trustees,  the  power  is  some- 
times considered  as  ceasing  at  once;  and  even  if  the  inten- 
tion is  that  the  power  shall  continue  in  the  trustees  until 
conveyance,  yet  it  is  not  too  remote;  for  the  owner  of  the 
equitable  fee  can  destroy  it  at  any  time  by  demanding  a 
conveyance.4 

§  491.   If  it  appears  to  be  the  intention  that  the  power  shall 

1  Lewis,  Perp.  547.  it  will  be  presumed  that  it  was  in- 

1  Per  Bayley,  B.,  Boyce  v.  tended  to  come  to  an  end  when  the 

Banning,  2  Cr.  &  J.  334,  339.  1  equitable  fee  vests  in  possession. 

Hayes,  Conv.  (5th  ed.)  498.  See  A  case  where  it  was  held  to  con- 

Sugd.  Pow.  (8th  ed.)  848.  tinue  is  Re  Cotton's  Trustees,  19 

1  Cole  t).  Sewell,  4  Dr.  &  W.  Ch.  D.  624.  So  Re  Tweedie,  27 

1,  32.  Ch.  D.  315;  Heard  v.  Read,  171 

4  Whether  a  power  is  to  come  Mass.  374.  See  also  Peters  v. 

to  an  end  when  the  ultimate  re-  Lewes,  &c.  R.  Co.,  18  Ch.  D.  429, 

mainder-man  is  beneficially  entitled,  434;  Taite  v.  Swinstead,  26  Beav. 

and  can  therefore  call  for  a  convey-  525,  529;  Brown's  Settlement, 

ance,  or  whether  it  is  to  continue  L.  R.  10  Eq.  349,  353.  Cf.  Biggs 

until  such  remainder-man  is  actu-  v.  Peacock,  20  Ch.  D.  200;  22  Ch. 

ally  clothed  with  the  legal  fee,  is  D.  284;  Boyd  v.  Allen,  24  Ch.  D. 

a  question  of  intention.  Ordinarily  622. 


408  THE   RULE   AGAINST  PERPETUITIES. 

continue  after  the  ultimate  fee  or  absolute  interest  vests  in 
possession,  even  then  it  is  not  void,  if  it  must  be  exercised 
within  a  reasonable  time  after  lives  in  being,  and  if  such  rea- 
sonable time  is  less  than  twenty-one  years.1 

§  492.  And  again,  when  the  power  can  be  exercised  only 
with  the  consent  of  the  person  entitled  to  the  fee  or  absolute 
property,  it  is  not  void;  for  a  conveyance  by  such  person  would 
debar  him  from  consenting  to  the  exercise  of  the  power,  and 
puts  it  therefore  entirely  within  his  control.2 

§493.  But  if  it  is  the  intention  that  the  power  shall  con- 
tinue notwithstanding  that  the  legal  fee  has  vested  in  posses- 
sion, and  if  the  exercise  of  the  power  is  not  limited  in  the 
manner  indicated  in  the  preceding  sections,  such  power  is 
void.3  And  it  is  immaterial  whether  there  are  any  particular 
estates  preceding  the  estate  in  fee  or  not.  That,  however, 
a  power  in  a  settlement  or  will  was  intended  to  continue  after 
the  ultimate  remainder-man  had  become  clothed  with  the  legal 
fee  is  so  highly  improbable,  that  such  intention  would  have 
to  appear  in  the  most  unmistakable  manner  in  the  instrument. 

§  494.  If  the  power  is  one  which  can  be  exercised  after  the 
ultimate  fee  vests  in  possession,  the  fact  that  a  recovery  suf- 
fered by  a  tenant  in  tail  would  bar  it  will  not  make  it  good. 
For  the  estate  tail  may  come  to  an  end  without  being  barred, 
and  then  the  power  will  be  in  existence  and  indestructible  at  a 
remote  period.4 

§  495.  As  has  been  said,6  it  was  some  time  before  the  law 
with  regard  to  powers  of  sale  and  exchange  in  trustees  of  set- 
tlements was  placed  on  a  sound  footing.  The  first  case  was 
Ware  v.  Polhill*  There  leasehold  estates  were  bequeathed  to 
trustees  in  trust  to  pay  the  rents  to  those  persons  who  were, 
for  the  tune  being,  entitled  to  certain  land  under  a  strict  settle- 

1  §  478,  ante.  34.    Lewis,  Perp.  555  et  seq.    Mars- 

*  Biddle  v.  Perkins,  4  Sim.  135.  den,  Perp.  240. 

Powis  v.   Capron,   Id.    138,   note.          *  See  Bristow  v.  Boothby,  2  S. 

Lewis,  Perp.  555,  561,  562.    Third  A  St.  465.     Cf.  §  446,  ante. 
Rep.  Real  Prop.  Comm.  34,  42,  43.  •  §  487,  ante. 

»  Third  Rep.  Real  Prop.  Comm.  •  11  Ves.  257. 


POWERS.  409 

ment.  The  trustees  had  power,  with  the  consent  of  such  per- 
sons, and  during  the  minority  of  such  persons  at  their  own 
discretion,  to  sell  the  leaseholds  and  invest  the  proceeds  in  real 
estate  to  the  same  uses.  The  first  tenant  in  tail  having  died 
while  an  infant,  his  administratrix  sought  by  a  bill  in  equity  a 
conveyance  of  the  leaseholds  from  the  trustees,  and  an  account. 
Questions  other  than  those  of  the  validity  of  the  power  were 
chiefly  discussed.  Lord  Eldon  decided  these  questions,  and 
two  days  later  added:  "Upon  farther  consideration  as  to  the 
leasehold  estate,  I  think  that  power  of  sale  is  void;  for  it  may 
travel  through  minorities  for  two  centuries;  and,  if  it  is  bad 
to  the  extent  in  which  it  is  given,  you  cannot  model  it  to 
make  it  good.  I  think  the  soundest  ground  is,  that  the  power 
is  bad."  1 

§  496.  This  remark  at  first  caused  great  alarm  among  the 
conveyancers,  who  feared  that  it  struck  at  the  validity  of  all 
powers  of  sale  or  exchange  which  were  not  limited  in  express 
terms  to  a  time  within  the  Rule  against  Perpetuities;  and 
although,  on  various  grounds,  they  contended  that  such  powers 
were  good,2  yet  they  adopted  the  practice  of  limiting  such  pow- 
ers within  the  bounds  fixed  by  the  Rule  against  Perpetuities.3 

§  497.  But  in  fact  in  Ware  v.  Polhill  the  same  result  would 
have  been  reached  had  it  been  held  that  the  power  ceased 
to  be  exercisable,  when  the  first  tenant  in  tail  got  an  absolute 
interest  in  the  personalty,  and  therefore  was  not  void.  And 
that  this  was  the  ground  upon  which  the  decision  could  be 
supported  was  said,  rather  obscurely,  by  Sir  E.  B.  Sugden,4 
and  afterwards  more  clearly  by  Sir  W.  P.  Wood,  V.  C.,  hi  Lants- 
bery  v.  Collier 6  and  Doncaster  v.  Doncaster.* 

1  11  Ves.  283.  to  the  doubt  suggested  by  Ware  ». 

1  See  Lewis,  Perp.  544  et  seq,  Polhill,  Lord  St.  Leonards  has  said, 

1  §  487,  ante.  and  it  has  been  repeated  since  by 

4  Sugd.  Pow.  (8th  ed.)  846-848.  other   authors,   that   the   question 

See  Lewis,  Perp.  642-544;  1  Chance,  supposed  to  have  been  decided  by 

Pow.  §§  312,  313;    1    Ppw.    Dev.  Lord  Eldon  in  that  case  did  not, 

(Jarrn.  ed.)  248,  note.  in  fact,  arise.    It  is  true  that  Lord 

•  2  K.  &  J.  709.    "With  regard  Eldon,  in  holding  that  the  power 


410 


THE   BULB  AGAINST  PERPETUITIES. 


§  498.  Whatever  doubt  may  have  been  formerly  enter- 
tained, the  law  is  now  well  settled.  In  several  cases  powers 
have  been  held  good  when  given  to  the  trustees  of  property 
settled  in  tail.1 

§  499.  There  are  also  many  cases  in  which  powers  have  been 
held  good  when  property  has  been  settled  for  life  with  remain- 
ders in  fee  (which  is  the  common  mode  in  America).2 


was  void,  put  it  as  a  ground  of  his 
decision  that  the  power  might  travel 
through  minorities  for  centuries. 
Still,  that  was  by  no  means  a  neces- 
sary ground  for  the  decision.  There 
leaseholds  were  settled  as  well  as 
freeholds  and  copyholds,  and  the 
result  of  the  events  which  had  hap- 
pened was,  that  the  leaseholds  had 
become  absolutely  vested  in  an  in- 
fant tenant  in  tail;  and  the  ques- 
tion was,  whether,  after  the  estate 
had  thus  become  absolutely  vested, 
the  power  could  be  exercised.  I 
apprehend  there  can  be  no  doubt 
whatever,  and  Lord  St.  Leonards 
seems  to  have  arrived  at  that  con- 
clusion, —  that,  when  what  I  may 
call  the  uses  of  the  settlement,  and 
the  purposes  of  the  settlement,  are 
spent,  the  power  is  no  longer  capable 
of  being  exercised;  and  although 
there  may  be  a  technical  difficulty 
with  respect  to  the  power  being 
collateral,  still  the  Court  will  regard 
the  purposes  of  the  settlement  as 
in  fact  exhausted;  and  the  purposes 
of  the  settlement  being  exhausted, 


and  the  power  having  been  created 
solely  for  the  purposes  of  the 
settlement,  there  is  an  end  to 
any  exercise  of  the  power  which 
could  operate  in  derogation  of  an 
absolute  interest  acquired  by  any 
party  under  the  trusts  of  the 
settlement."  2  K.  &  J.  717, 
718. 

•  3  K.  &  J.  26,  38.  To  the  same 
effect  are  Wolley  v.  Jenkins,  23 
Beav.  53,  62;  and  3  Dav.  Free. 
Conv.  (3d  ed.)  570,  571.  See  also 
Ferrand  v.  Wilson,  4  Hare,  344, 
378-380;  Briggs  v.  Oxford,  1  De  G. 
M.  &  G.  363,  370;  Taite  v.  Swin- 
stead,  26  Beav.  525,  530.  Although 
this  seems  to  be  the  explanation 
of  Ware  v.  Polhill,  universally  re- 
ceived at  present,  it  may  be  doubted 
if  the  testator  in  that  case  intended 
the  power  to  cease  on  an  infant 
tenant  in  tail  becoming  absolutely 
entitled;  and  unless  he  did,  the 
power  was  bad,  for  the  reason 
given  by  Lord  Eldon,  that  it  might 
"travel  through  minorities  for  two 
centuries." 


1  Waring  ».  Coventry,  1  Myl. 
&  K.  249.  Wallis  v.  Freestone,  10 
Sim.  225.  Briggs  v.  Oxford,  1  De 
G.  M.  &  G.  363.  (See  3  Dav.  Free. 
Conv.  (3d  ed.)  468,  469,  note.) 
Lantsbery  v.  Collier,  2  K.  &  J.  709. 
See  Cole  v.  Sewell,  4  Dr.  &  W.  1, 
32;  Brown's  Settlement,  L.  R.  10 
Eq.  349,  353. 


1  Boyce  v.  Hanning,  2  Cr.  &  J. 
334.  (See  Lewis,  Perp.  548.)  Nel- 
son v.  Callow,  15  Sim.  353.  Don- 
caster  v.  Doncaster,  3  K.  &  J.  26, 
38.  Brown's  Settlement,  L.  R.  10 
Eq.  349.  Taite  v.  Swinstead,  26 
Beav.  525.  Cresson  v.  Ferree,  70 
Pa.  446.  Crawford  v.  Lundy,  23 
Grant,  244.  See  Wood  v .  White,  4 


POWERS.  411 

§  500.  Life  estates  may  be  given  to  unborn  children  and  the 
subsequent  remainders  will  be  good,  provided  they  vest  not 
later  than  lives  in  being.  Thus  land  may  be  devised  to  A.,  a 
bachelor,  for  life,  remainder  to  A.'s  eldest  son  for  life,  remainder 
to  A.'s  other  children  hi  fee.1  But  a  power  which  was  to  sub- 
sist until  the  ultimate  remainder  vested  in  possession  would 
here  be  bad,  because  it  might  be  exercised  during  the  life  of  A.'s 
eldest  son,  which  might  be  more  than  twenty-one  years  after 
a  life  in  being. 

§  501.  In  F errand  v.  Wilson*  land  was  devised  on  estates 
for  life  and  in  tail  with  an  ultimate  remainder  in  fee,  and  a 
power  was  given  to  the  executors  or  the  survivor  of  them  and 
the  executors  of  the  survivor,  until  some  person  entitled  in 
possession  under  the  limitations  of  the  will  to  an  estate  tail  or 
some  greater  estate  should  reach  twenty-one,  to  enter  and 
cut  timber  and  apply  the  proceeds  in  payment  of  debts  and 
legacies  with  the  consent  of  the  devisee  in  possession,  and 
the  surplus  in  the  purchase  of  lands  to  be  settled  to  the 
uses  of  the  will.  Sir  James  Wigram,  V.  C.,  held  the  power 
to  be  too  remote.3 

§  502.  Ferrand  v.  Wilson  has  been  much  criticised,  and  it 
is  difficult  to  see  how  it  can  be  sustained.  The  power  could 
be  exercised  only  so  long  as  a  tenant  in  tail  or  in  fee  was  in 
possession  under  the  limitations  of  the  will;  and  as  a  tenant 
in  tail  or  in  fee  could  alienate  the  land,  the  power  was  de- 

Myl.  &  Cr.  460;  Lantsbery  v.  Col-  243;  3  Dav.  Free.  Conv.  (3d  ed.) 
lier,  2  K.  &  J.  709,  719-722;  Wolley  570-577.  Cf.  Lewis,  Perp.  c.  25; 
v.  Jenkins,  23  Beav.  53;  s.  c.  on  Suppl.  194-200.  Neither  in  his 
appeal,  3  Jur.  N.  s.  321;  Peters  v.  original  treatise  nor  in  the  Sup- 
Lewes,  &c.  R.  Co.,  16  Ch.  D.  703;  plement  does  Mr.  Lewis  treat  this 

18  Ch.  D.  429;  Re  Cotton's  Trusts,  subject    satisfactorily.      Both    the 

19  Ch.  D.  624,  629;  Re  Tweedie,  treatise  and  the  Supplement  were 
27  Ch.  D.  315;  Heard  v.  Read,  171  published   before   the   decision   in 
Mass.  374.  Lantsbery  v.  Collier. 

On  the  classes  of  cases  mentioned  l  §  232,  ante. 

both  in  this  and  in  the  preceding  *  4  Hare,  344. 

section,  see  also  Sugd.  Pow.  (8th  *  4  Hare,  373-381. 
ed.)  846-851;  Marsden,  Perp.  241- 


412  THE   RULE   AGAINST  PERPETUITIES. 

structible;  the  fact  that  the  tenant  was  a  minor  did  not  affect 
the  question.1 

§  503.  Sir  James  Wigram  suggested,  hesitatingly,  a  dis- 
tinction between  the  power  in  the  case  before  him  and  powers 
of  sale  and  exchange  and  of  leasing,  on  the  ground  that  the 
latter  do  not  tend  to  restrain  alienation.2  But  the  impossibil- 
ity of  sustaining  these  latter  on  that  ground  has  been  shown 
above.8 

§  504.  In  Briggs  v.  Oxford 4  land  was  settled  in  estates 
tail,  and  trustees  had  a  power  to  cut  and  sell  timber  in  dis- 
charge of  incumbrances.  The  Lords  Justices  held  that  the 
power  was  good.5  They  did  not  overrule  Ferrand  v.  Wilson, 
but  they  do  not  seem  to  have  approved  of  it.  Lord  Cran- 
worth,  L.  J.,  said:  "If  the  law  be  not  that  a  power  is  always 
good  so  far  as  perpetuity  is  concerned,  if  it  is  capable  of  being 
barred  by  a  common  recovery,  or  by  that  which  is  now  equiv- 
alent to  a  common  recovery,  perhaps  it  is  a  matter  of  regret 
that  that  is  not  the  state  of  the  law.  If  there  are  any  excep- 
tions to  that  rule,  I  think  they  have  created  more  embarrass- 
ment than  is  compensated  for  by  any  benefit  which  they  have 
produced." ' 

§  505.  In  Floyer  v.  Bankes 7  by  a  settlement  land  was  given 
to  trustees  for  five  hundred  years,  and,  subject  to  this  term, 
on  estates  for  life  and  in  tail;  and  it  was  provided  that  during 
the  minority  of  any  person  who  should  from  time  to  time  be 
entitled  under  the  limitations  in  the  settlement  to  the  imme- 
diate freehold  as  tenant  for  life  or  in  tail,  the  trustees  of  the 
term  might  enter  into  possession  of  and  manage  the  same  and 
apply  the  rents  (amongst  other  things)  in  improving  the 
property.  Lord  Romilly,  M.  R.,  said,  obiter,  that  this  right 
of  the  trustees  to  enter  was  "clearly  too  remote."  As  the 


§§  443,  444,  ante.  •  See   also   Lewis,  Perp.  Suppl. 

4  Hare,  381.  196-199;  Maraden,  Perp.  244,  245; 

§  489,  ante.  Farwell,  Pow.  (2d  ed.)  110-112. 
1  De  G.  M.  &  G.  363.  »  L.  R.  8  Eq.  115. 

See  §  486,  ante. 


POWERS.  413 

right  could  not  be  exercised  after  the  expiration  of  the  estates 
tail,  and  as  these  could  be  barred  at  any  time,  there  was  no 
objection  on  principle  to  the  right;  but  the  dictum  was  in  ac- 
cordance with  the  decisions  in  Browne  v.  Stoughton,1  Turvin  v. 
Newcome,2  and  Cochrane  v.  Cochrane,3  previously  considered,4 
which  go  upon  the  unsatisfactory  ground  that  the  term 
precedes  the  estates  tail.5 

§  506.  To  sum  up  the  law  as  to  powers  in  connection  with 
settled  property:  1.  Sometimes  the  power  ceases  as  soon  as  the 
equitable  fee  or  absolute  interest  vests  in  possession.  2.  Some- 
times the  power  can  be  exercised  only  until  the  owner  of  the 
equitable  fee  or  absolute  interest  calls  for  the  legal  estate  or 
interest.6  3.  Sometimes  the  power  can  be  exercised  within 
a  reasonable  time  after  the  fee  or  absolute  interest  has  vested 
in  possession,  such  reasonable  time  being  not  over  twenty-one 
years  after  lives  in  being.7  4.  Sometimes  the  power  is  created 
to  be  exercised  on  a  contingency  which  may  happen  after  the 
legal  fee  or  absolute  interest  has  vested  in  possession  (or  after 
the  time  when  the  owner  of  the  equitable  fee  or  absolute  in- 
terest can  call  for  the  legal  estate  or  interest),  and  which  may 
be  more  than  twenty-one  years  after  a  life  in  being.  In  the 
first  three  cases  the  power  is  not  void  for  remoteness;  in  the 
last  it  is.  The  ordinary  powers  of  sale  and  exchange  and  of 
leasing  come  under  one  of  the  first  two  heads.  It  requires  the 
clearest  evidence  of  intention  to  bring  a  power  under  the  fourth 
head. 

§  507.  The  case  of  Peters  v.  Lewes,  &c.  R.  Co.8  is  instruc- 
tive. There  a  power  to  sell  and  distribute  on  the  termina- 
tion of  a  life  estate  was  said  by  Sir  George  Jessel,  M.  R.,  to 
be  a  valid  power,  and  one  which  survived  the  termination  of 

1  14  Sim.  369.  Farwell,  Pow.  (2d  ed.)   113;  Tre- 

2  3  K.  &  J.  16.  velyan  v.  Trevelyan,  53  L.  T.  R. 
1  11  L.  R.  Ir.  361.                              853. 

4  §§  466,  467,  ante.  •  §  490,  ante. 

8  §§  456-462,     471,    472,     ante.  7  §  491,  ante.    Cf.  §  500,  ante. 

See  3  Dav.  Free.  Conv.  (3d  ed.)  •  18  Ch.  D.  429,  reversing  16 

483,    note;    Marsden,    Perp.    159;  Ch.  D.  703. 


414  THE   RULE   AGAINST   PERPETUITIES. 

the  life  estates.  He  held,  therefore,  that  it  did  not  belong 
to  the  first  class.  He  thought  it  valid  because  it  belonged 
to  the  third  class.  He  might  also  have  held  it  valid  as  be- 
longing to  the  second  class.  He  says:  "I  agree  if  all  the  chil- 
dren, being  free  from  disability,  concur  in  calling  upon  the 
trustees  to  convey,  that  puts  an  end  to  the  trust,  and,  of 
course,  to  the  power  also.  It  puts  an  end  to  the  trust  to  di- 
vide." l  Had  it  been  made  to  appear  that  it  was  the  intention 
of  the  testator  that  the  power  might  be  exercised  more  than 
twenty-one  years  after  the  legal  estate  had  vested,  it  would 
have  been  bad  as  belonging  to  the  fourth  class.2 

§  508.  In  Barnum  v.  Barnum 3  a  power  to  trustees  to  lease 
was  held  bad,  because  the  trust  was  considered  bad.  But, 
as  has  been  shown,4  the  trust  was  good,  until  terminated  by 
the  cestuis  que  trust,  and  because  it  was  so  terminable.  The 
power  was  therefore  good  under  the  second  head  in  §  506, 
ante. 

§  509.  Powers  to  appoint  new  trustees,  although  not  ex- 
pressly limited  in  time,  are  yet  not  void.  The  reason  some- 
times given 5  that  it  is  immaterial  by  whom  the  trusts  are 
executed  is  "an  equitable  answer  to  a  legal  objection."  6  The 
true  reason  is  the  same  which  governs  powers  of  sale  and  ex- 
change and  of  leasing,  that  as  soon  as  the  cestuis  que  trust  call 
for  and  receive  the  legal  estate  the  trust  is  at  an  end  and  the 
power  necessarily  ceases.7 

§  509  a.  The  question  of  remoteness  of  powers  for  sale  has 
lately  been  quite  frequently  before  the  courts.  Before  con- 
sidering the  cases,  attention  should  be  called  to  the  point 
remarked  upon  above  in  the  chapter  on  Trusts;8  that  so  far 
as  concerns  the  Rule  against  Perpetuities  it  is  immaterial 

>  18  Ch.  D.  434.  «  See  1  Hayes,  Conv.  (5th  ed.) 

»  Cf.  Lewis,  Perp.  565-569.  498. 

*  26  Md.  119,  172,  173.  »  See  §  490,  ante.    Cf.  Clark  v. 
4  §  245  c  (1),  ante.  Platt,  30  Conn.  282.     As  to  the 

*  Marsden,  Perp.  247;  2  Chance,      right  to  enter  on  default  of  payment 
Pow.  §  2588.  of  rent,  see  §  303,  ante. 

8  414  a,  ante. 


POWERS.  415 

whether  the  direction  or  authority  to  sell  be  in  the  form  of  a 
trust  to  sell,  or  of  a  power  to  sell  in  the  trustee,  or  of  a  power 
to  sell  given  to  a  stranger. 

§  509  6.  In  Goodier  v.  Johnson  l  a  testator  directed  that 
upon  the  death  of  his  son,  of  his  daughter,  and  of  any  widow  of 
his  son,  his  trustees  should  sell  his  land  and  pay  the  proceeds 
to  certain  persons.  As  the  son  might  marry  a  woman  unborn 
at  the  testator's  death,  his  widow  might  not  die  until  after  the 
period  fixed  by  the  Rule  against  Perpetuities.  The  testator's 
heir  brought  a  bill  on  the  ground  that  the  devise  was  void  be- 
cause the  class  of  persons  who  were  to  take  were  to  be  ascer- 
tained at  too  remote  a  period.  The  Court  were  of  opinion  that 
on  the  true  construction  of  the  will  the  class  would  be  ascer- 
tained within  the  required  limits,  and  "merely  made  a  declara- 
tion that  the  heir  had  no  title."  But,  Jessel,  M.  R.,2  said, 
"It  seems  to  me,  however,  that  the  trust  for  sale  is  bad,  as 
it  is  not  limited  to  take  effect  within  the  period  of  a  life  in 
being  and  twenty-one  years  after. "  As  far  as  appears  this  dic- 
tum was  correct.  Although  the  class  ultimately  to  take  would 
be  ascertained  within  lives  in  being,  yet  they  would  not  be 
then  entitled  to  call  for  a  conveyance,  and  thus  destroy  the 
power;  the  trust,  so  far  as  appears,  might  not  be  terminable 
until  the  death  of  the  son's  widow;  the  power  would  be  in- 
destructible till  that  time,  and  was  therefore  too  remote.3 

§  509  c.  In  re  Tweedie.4  Land  was  settled  on  trustees  in 
trust,  and  at  the  request  of  A.  and  B.  and  the  survivor,  and 
after  their  death  at  discretion,  to  sell  and  hold  the  proceeds 
upon  trust  for  A.  and  B.  for  life,  and  then  for  their  children. 
Pearson,  J.,  held  that  after  the  death  of  A.  and  B.  the  trustees 
could  sell  without  the  concurrence  of  the  children.  It  was 
argued  that  the  power  came  to  an  end  with  the  death  of  A. 
and  B.;  that  if  it  did  not  it  would  be  too  remote.  The  judge 

1  18  Ch.  D.  441.     It  is  stated  L.  T.  R.  N.  s.  754.    Cf.   §  509  c, 

more  fully,  §  388,  ante.  note,  §  509  t,  note,  post. 
1  P.  449.  «  27  Ch.  D.  315. 

*  See  Re   Coulson's   Trusts,  97 


416  THE   RULE  AGAINST  PERPETUITIES. 

said  that  to  hold  that  such  a  trust  "is  obnoxious  to  the  rule 
against  perpetuities  would  be  to  introduce  a  rule  which  has 
never  yet  been  laid  down."  It  does  not  appear  whether 
the  learned  judge  thought  the  power  good  because  the  children 
could  destroy  it,  by  calling  for  a  conveyance,  or  because  it 
must  be  exercised  within  a  reasonable  time  after  the  death  of 
the  life  tenants  and  that  such  reasonable  time  was  less  than 
twenty-one  years.1 

§  509  d.  Goodier  v.  Edmunds?  In  this  case  there  came 
again  before  the  court  the  will  which  was  before  it  in  Goodier 
v.  Johnson,  and  the  question  was  directly  presented  whether 
the  power  to  sell  was  too  remote.  Stirling,  J.,  followed  the 
dictum  of  Sir  George  Jessel,  M.  R.,  and  held  that  the  power  was 
invalid.  He  said,  after  quoting  the  language  of  the  Master 
of  the  Rolls,  "With  the  exception  of  the  passage  just  quoted, 
there  was  not  cited  in  argument,  nor  have  I  been  able  to  dis- 
cover, any  authority  bearing  on  the  question."  As  is  said 
above,3  there  is  no  occasion  to  criticise  this  decision. 

§  509  e.  In  re  Henzell.4  A  testator  devised  land  on  trust  for 
his  wife  for  life,  and,  on  her  death,  the  will,  as  construed  by  the 
court,  gave  his  children  vested  interests.  The  trustees  had  a 
power  at  any  time,  but,  during  the  wife's  life,  only  with  her 
consent,  to  sell  the  land.  The  wife  died  in  April,  1887.  Kay,  J., 
"referred  to  the  observations  of  Jessel,  M.  R.,  in  Peters  v.  Lewes, 
&c.  R.  Co.,5  and  held  that  the  power  endured  during  the  life  of 
the  tenant  for  life  with  her  consent,  and  after  her  death  during 
a  reasonable  time  for  the  purposes  of  division,  and  that,  as  she 
had  recently  died,  the  power  was  still  exercisable."  The 
learned  judge  apparently  thought  that  the  power  subsisted  for 
only  a  reasonable  time  after  the  death  of  the  life  tenant,  and 
was  therefore  valid. 

1  That  a  power  to  sell  in  trus-      Biggs  v.  Peacock,  20  Ch.  D.  200; 
tees  is  not  put  an  end  to  during  the      22  Ch.  D.  284. 
life  of  the  tenant  for  life,  by  the          »  [1893]  3  Ch.  455. 
fact  that  the  persons  entitled  in  re-  *  See  §  509  6,  ante. 

mainder  have  vested  interests,  see          *  [1887]  W.  N.  240. 

•  18  Ch.  D.  429,  435;  §  507,  ante. 


POWERS.  417 

§  509  /.  In  re  Daveron.1  A  testator  devised  land  to  trustees, 
subject  to  a  lease  which  had  forty-nine  years  unexpired,  upon 
trust  to  pay  the  rent  so  long  as  the  lease  should  run  to  a  cer- 
tain class,  and  upon  the  expiration  of  the  lease,  to  sell  the  land 
and  pay  the  proceeds  to  another  class.  Both  classes  were  as- 
certainable  within  the  limit  of  the  Rule  against  Perpetuities. 
Counsel  admitted  that  the  power  was  too  remote,  and  Chitty,  J., 
said  that  the  admission  seemed  to  him  correct,  and  this  appears 
to  be  so.  The  power  was  not  destructible,  for  the  class  entitled 
to  the  proceeds  of  the  sale  could  not  demand  a  conveyance  of 
the  estate  free  from  the  lease.2 

§  509  g.  In  re  Sudeley.3  Real  and  personal  property  was 
given  to  trustees  in  trust  to  pay  the  income  to  certain  persons  for 
life,  and  on  their  death  to  divide  the  property  among  certain 
other  persons,  with  power  in  the  trustees  to  sell  any  of  the 
property  at  such  times  as  they  saw  fit.  Chitty,  J.,  held  that  the 
power  could  be  exercised  after  the  deaths  of  the  life  tenants,  but 
that,  as  it  must  be  exercised  within  a  reasonable  time  after  those 
deaths,  which  was  less  than  twenty-one  years,  it  was  not  too 
remote.  The  learned  judge  thought  that  the  opinion  of  Jessel, 
M.  R.,  in  Peters  v.  Lewes,  &c.  R.  Co.4  was  good  law,  and  fol- 
lowed it. 

§  509  h.  In  re  Wood.5  Land  was  devised  to  trustees  in 
trust  to  sell  it  at  a  period  which  might  be  too  remote,  and  to 
hold  the  proceeds  in  trust  "for  such  child  of  mine  then  living, 
and  such  issue  living  of  any  child  or  children  then  deceased, 
as  shall,  being  a  son  or  sons,  attain  the  age  of  twenty-one  years, 
or,  being  a  daughter  or  daughters,  attain  that  age  or  marry, 
hi  equal  shares,  but  so  that  the  issue  of  my  deceased  children 
may  take  the  share  or  the  respective  shares  only  that  the  parent 
or  respective  parents  would  have  taken  if  living."  Although 
the  maximum  number  of  shares  must  have  been  determined 
within  the  required  limits  of  the  Rule  against  Perpetuities, 

1  [1893]  3  Ch.  421.  «  18  Ch.  D.  429,  §  507,  ante. 

1  See  §  509  c,  note,  ante.  •  [1894]  2  Ch.  310;  [1894]  3  Ch. 

»  [1894]  1  Ch.  334.  (C.  A.)  381. 


418  THE   RULE  AGAINST  PERPETUITIES. 

the  minimum  might  not,1  and  therefore  there  might  not  be, 
within  the  required  limits,  any  persons  who  could  demand  a 
conveyance,  and  so  destroy  the  power.  The  power  was,  of 
course,  held  too  remote.2 

§  509  i.  In  re  Appkby.3  This  was  a  case  like  Goodier  v. 
Johnson,4  where  a  power  was  exercisable  during  a  life  not  in 
being  at  the  creation  of  the  power.  The  remainder-men, 
although  their  interest  was  vested,  could  not  call  for  a  con- 
veyance during  the  continuance  of  the  life,  and  this  power 
was  held  void.5 

§  509  j.  In  England,  therefore,  powers  which  can  be  exer- 
cised only  within  a  reasonable  time  after  lives  in  being,  which 
time  is  less  than  twenty-one  years,  are  good.  So  if  land  is 
settled  in  tail,  powers  which  can  be  exercised  only  during  the 
continuance  of  the  estates  tail  are  not  too  remote.  That  powers 
which  can  be  destroyed  by  those  equitably  interested  in  an 
estate  demanding  a  conveyance  are  not  too  remote,  seems  never 
to  have  been  directly  held  in  England,  but  there  is  no  decision 
inconsistent  with  such  a  view.6 

§  509  k.  To  come  to  the  American  cases.  Seamans  v.  Gibbs.7 
Land  was  conveyed  to  a  trustee  with  power  to  sell  and  divide 
the  proceeds  among  those  having  the  equitable  interest.  There 
was  no  limit  as  to  the  time  within  which  the  power  could  be 
exercised.  One  of  the  equitable  owners  brought  a  bill  against 
the  trustee  to  compel  a  conveyance.  It  was  held  that  one 

1  See  §§  381  et  seq.,  ante.  erty."    1  Jarm.  Wills  (6th  ed.)  308. 

*  A  like   decision  was   made  in  Re    Daveron,   [1893]    3    Ch.    421. 
Dawson  v.  Lancaster,  28  Pa.  C.  C.  Goodier  v.  Edmunds,  Ib.  455.    In 
657.     So  in  In  re  Bewick,  [1911]  re  Appleby,  [1903]  1  Ch.   (C.  A.) 
1  Ch.  116,  where  there  was  a  trust  565.     See  App.  I,  post;  37  IT.  L. 
to  sell,  after  mortgages  had  been  Times,  294,  304,  314. 

paid  out  of  rents.  *  But  there  is  a  dictum  by  Sir 

»  [1903]  1  Ch.  (C.  A.)  565.  John    Romilly,    M.    R.,    Taite    v. 

4  See  §  509  6,  ante.  Swinstead,  26  Beav.  525,  529.    See 

•  "It  may  happen  that  a  trust  1  Wms.  Vend.  &  P.  (2d  ed.)  263. 

is  bad,  and  that  the  persons  in-          7  132  Mass.  239.    See  O'Rourke 
tended  to  be  benefited  by  it  are,      v.  Beard,  151  Mass.  9. 
nevertheless,  entitled  to  the  prop- 


POWERS.  419 

owner  could  not  compel  a  conveyance.  The  Court  also  said: 
"The  case  does  not  come  within  the  rule  against  perpetuities." 
The  reason  given,  however,  was  not  very  satisfactory.  "An  in- 
alienable estate  was  not  created  by  the  deed  and  declaration 
of  trust,  which  could  not  be  conveyed  even  if  all  the  parties  in 
interest  joined  in  conveying.  The  trustee,  by  the  terms  of  his 
deed,  could  convey  the  estate  discharged  of  the  trust,  or  all  the 
parties  in  interest  could  at  any  time  pass  the  title,  by  joining  in 
a  conveyance."  The  true  reason,  it  is  submitted,  was  because 
all  the  equitable  owners  could  demand  a  conveyance  from  the 
trustee. 

§  509  I.  When  property  is  held  in  trust  for  several  persons 
who  are  to  have  interests  in  common,  the  authority  of  the  trus- 
tee to  sell  free  from  equities  is  limited  by  the  terms  of  the  trust; 
if  the  authority  is  not  expressly  given,  the  trustee's  legal  right 
to  sell  will  bar  equities  only  if  all  the  equitable  owners  con- 
sent. This  is  one  of  the  incidents  of  equitable  ownership 
in  common;  that  relation  has  its  own  incidents,  just  as  legal 
ownership  in  common,  or  the  interest  of  a  stockholder  in  a 
corporation,  has  its  own  incidents,  and  if  the  interest  of  each 
equitable  owner  is  freely  alienable,  neither  the  Rule  against 
Perpetuities  nor  the  doctrine  forbidding  restraints  on  aliena- 
tion has  anything  to  do  with  the  situation.1 

§  509  m.  Winsor  v.  Mills.2  P.  agreed  that  he  would  hold  an 
undivided  third  of  a  parcel  of  land  belonging  to  him,  in  trust 
for  M.,  and  covenanted  that  he  would  not  sell  the  land  or  any 
interest  therein,  without  the  consent  of  M.,  his  heirs  or  assigns. 
This  forbade  him  to  transfer  his  own  two-thirds  interest 
without  the  consent  of  M.,  his  heirs  or  assigns,  and  the  Court 
held  that  this  right  in  M.,  his  heirs  or  assigns,  to  refuse  con- 
sent was  too  remote. 

§  509  n.  There  were  dicta  in  Winsor  v.  Mills  which  might 
be  interpreted  as  going  beyond  this,  but  any  erroneous  infer- 

1  See  Hutchison's  Appeal,  82  491,  506;  Gray,  Restraints  on  Alien- 
Pa.  509;  Howe  v.  Morse,  174  Mass,  ation,  §  30. 

•  157  Mass.  362;  §  275  a,  ante. 


420  THE  RULE  AGAINST  PERPETUITIES. 

ence  from  them  is  corrected  by  Howe  v.  Morse.1  In  this  case 
land  was  conveyed  to  trustees  in  trust  to  sell  when  authorized 
by  three-fourths  of  the  cestuis  que  trust.  The  shares  of  these 
cestuis  que  trust  were  freely  transferable.  It  was  held  that  the 
trust  was  valid. 

§  509  o.  Cooper's  Estate.*  A  testatrix  gave  all  her  property 
to  a  trustee  in  trust  to  divide  the  income  of  the  property,  and 
also  the  proceeds  of  the  real  estate,  among  certain  persons. 
The  trustee  had  power  to  sell,  and  no  time  was  fixed  within 
which  the  power  must  be  exercised.  The  Supreme  Court  of 
Pennsylvania  held  that  the  power  was  valid.  They  said:  "We 
are  unable  to  see  anything  in  this  trust  which  is  in  conflict  with 
the  law  in  regard  to  perpetuities.  The  mere  fact  that  no  time 
is  fixed  within  which  the  power  of  sale  must  be  exercised,  does 
not  of  itself  create  a  perpetuity.  It  is  sufficient  to  say  that  a 
power  to  sell  and  distribute  the  proceeds,  created  by  a  will, 
must  be  exercised  within  a  reasonable  time.  .  .  .  Aside  from 
this,  it  was  competent  for  all  the  parties  in  interest  at  any 
time  to  defeat  the  power  and  to  take  the  property  discharged 
thereof.  Under  these  circumstances,  we  cannot  say  that  the 
trust  created  a  perpetuity."  3 

§  509  p.  Hart  v.  Seymour*  Land  was  conveyed  to  trustees 
in  trust  to  improve  and  sell  and  to  divide  the  proceeds  among 
certain  persons.  The  time  of  sale  was  left  wholly  in  their  dis- 
cretion. It  was  held  that  there  was  no  violation  of  the  Rule 
against  Perpetuities. 

§  509  q.  Barber  v.  Pittsburgh,  &c.  R.  Co.5  A  power  to  be 
exercised  on  the  termination  of  an  estate  tail  was  held  good. 

§  509  r.  The  most  important  case  is  Pulitzer  v.  Living- 
ston.6 The  owners,  tenants  in  common,  of  land  conveyed  it  to 
trustees  with  power  to  sell.  Each  tenant  in  common  had,  by 
the  trust  deed,  power  to  revoke  the  trusts  as  to  his  share.  The 

»  174  Mass.  491.  4  147  111.  598.    See  Bigelow  v. 

1  150  Pa.  576.  Cady,  171  111.  229,  §  237  c,  ante. 

«  And    so    is   Reed's  Est.,   37          8  166  U.  S.  83. 
Pa.  C.  C.  205.  •  89  Me.  359. 


POWERS.  421 

Supreme  Court  of  Maine  in  an  elaborate  opinion  upheld  the 
validity  of  the  power.  They  rested  their  judgment  on  the  fact 
that  the  power  was  destructible  at  the  pleasure  of  the  present 
equitable  owners,  who  were  "entitled  to  call  for  a  conveyance 
of  the  legal  estate  from  the  trustees  and  thereby  to  destroy  and 
finally  determine  the  trust."  *  It  is  true  that  each  tenant  in 
common  could  demand  a  conveyance  of  his  separate  share,  but 
that,  as  pointed  out  above,2  does  not  affect  the  question.3 

§  509  s.  On  powers  to  sell  for  change  of  investment,  given 
to  trustees  for  charitable  trusts,  see  §  590,  note  3,  ad  fin., 
post. 

2.  A  Power  which  cannot  be  exercised  beyond  the  Limits  of  the 
Rule  against  Perpetuities  is  not  rendered  bad  by  the  Fact 
that  within  its  Terms  an  Appointment  could  be  made  which 
would  be  too  remote.4 

§  510.  A  common  illustration  of  this  is  a  devise  to  a  man 
for  life,  with  remainder  among  such  of  his  issue  as  he  shall  by 
will  appoint.  If  he  appoints  to  his  children  in  fee,  the  ap- 
pointment is  good,  although  if  he  appointed  to  children  who 
were  not  born  at  the  testator's  death,  for  their  lives,  with  re- 
mainder to  their  children  in  fee,  this  appointment  to  the  grand- 
children would  be  bad  for  remoteness.  If  this  were  not  the 
law,  all  general  powers  and  most  special  powers  would  be  void. 

1  P.  369.  absolute    equitable    interest.      On 

2  See  §  509  I,  ante.  this   doctrine   in   connection   with 

3  In  view  of  the  foregoing  de-  the  Rule  against  Perpetuities,  see 
cisions,  as  well  as  of  sound  doc-  §§  121  c,  et  seq.,  ante. 

trine,  the  common  practice  of  con-  *  See  Stone  v.  Forbes,  189  Mass, 

fining  trusts  for  the  management  163,    172;    Bartlett    t;.    Sears,    81 

and  sale  of  real   estate  to  limits  Conn.  34,  41.     Cf.  a  singular  in- 

expressly  within  the  Rule  against  stance    of    the    confusion    of    this 

Perpetuities  seems  unnecessary.  second  rule  with  the  previous  rule 

By  a  doctrine  peculiar  to  Massa-  (p.  397,  ante)  in  a  note,  29  Law 

chusetts  and  Illinois  a  trustee  will  Quart.    Rev.    13,   which   is   justly 

sometimes  be  not  required  to  con-  criticised,  26  Harv.  Law  Rev.  648 

vey  the  legal  fee  to  a  cestui  que  and  30  Law  Quart.  Rev.  66. 
trust,  although  the  latter  has  the 


422  THE   RULE   AGAINST   PERPETUITIES. 

There  are  comparatively  few  powers  under  the  terms  of  which 
remote  appointments  could  not  be  made.1 

3.   The  Remoteness  of  an  Appointment  depends  on  its  Distance 
from  the  Creation  and  not  from  the  Exercise  of  the  Power. 

§  514.  If  this  were  not  the  case,  estates  for  life  with  powers 
of  appointment  by  will  might  be  created;  the  tenants  for  life 
might  appoint  for  life,  with  powers  to  the  appointees  to  ap- 
point by  will;  these  appointees  might,  in  their  turn,  appoint 
in  like  manner,  and  so  an  indefinite  series  of  Me  estates  could 
be  created. 

§  515.  "No  estate  or  interest  can  be  limited  under  a  par- 
ticular power,  which  would  have  been  too  remote,  if  limited 
in  the  deed  or  will  creating  the  power."2  "The  test  of  the 
validity  of  the  estates  raised  is  to  place  them  in  the  deed 
creating  the  power,  in  lieu  of  the  power  itself."  3  This  does 
not  mean  that  the  language  of  the  instrument  executing  the 
power  must  be  read  into  the  instrument  creating  it.  To  do 
this  would  often  produce  manifest  absurdity,  though  the  limi- 
tations were  of  the  most  unobjectionable  character.  Events 
future  at  the  time  of  the  creation  of  the  power  would  be  spoken 
of  as  past;  gifts  would  be  made  by  name  to  persons  not  in 
existence.  What  these  expressions  mean  is  that  no  appointment 
made  under  a  power  is  good,  unless  at  the  time  of  the  creation 
of  the  power  it  was  certain  that  if  the  appointment  was  ever  made 

1  See    Routledge    v.    Dorril,    2  Lewis,  Perp.  487,  488;  Suppl.  166; 

Ves.  Jr.  357;  Griffith  v.  Pownall,  Sugd.    Pow.    (8th   ed.)    152,    397; 

13  Sim.  393;  Harvey  v.  Stracey,  1  Mareden,  Perp.  236,  237;  1  Jarm. 

Drew,    73,    131;   Attenborough   v.  Wills  (5th  ed.)  260;  Tud.  L.  C.  in 

Attenborough,  1  K.  &  J.  296,  300;  Real  Prop.  (4th  ed.)  607;  1  Perry, 

Slark  v.  Dakyns,  L.  R.  10  Ch.  35;  Trusts  (6th  ed.)   §  383,  note.    Cf. 

In  re  Fane,  [1913]  1  Ch.  (C.  A.)  Warwick  v.  Gerrard,  2  Vern.  7;  Re 

404;  Hillen  v.  Iselin,  144  N.  Y.  365,  Coulman,  30  Ch.  D.  186. 
380;   Lawrence's   Estate,    136   Pa.  »  Lewis,  Perp.  488. 

354,    364;    In    re  Hobson's  Will,          »  Sugd.    Pow.    (8th    ed.)    396. 

119071  Viet.  L.  R.  724,  736;  Fonseca  See  In  re  Hallinan's  Trusts,  [19041 

v.  Jones,  21  Manitoba,   168,   190;  1  I.  R.  452;  38  Ir.  L.  T.  291. 


POWERS.  423 

the  appointee's  interest  would  vest,  if  at  all,  within  twenty-one 
years  after  lives  then  in  being.1 

§  516.  Consequently  when  the  donee  of  a  power  is  alive  at 
the  time  of  its  creation,  as  he  generally  is,  an  appointment 
which  is  to  take  effect  immediately  upon  (or  within  twenty- 
one  years  after)  the  donee's  death  is  good.  Thus  if  an  estate 
is  devised  to  A.  for  life,  with  power  to  appoint  among  such  of 
his  issue  as  he  chooses  by  will,  A.  can  appoint  to  the  remotest 
descendants  of  his  who  are  alive  at  his  death,  although  neither 
they,  nor  their  parents,  nor  their  grandparents  were  alive  at  the 
testator's  death.  For  the  interest  of  the  appointees  vests  at  A.'s 
death,  and  A.  was  alive  at  the  testator's  decease.2 

§  517.  Mr.  Lewis  in  his  Treatise  on  the  Rule  against  Perpe- 
tuities has  the  following  passage:  "A  question  seems  to  arise, 
as  to  how  far  an  appointment  would  be  good,  if  made  to  the 
child  of  a  person  unborn  at  the  time  of  the  creation  of  the 
power,  living  at  the  date  of  the  appointment,  and  specifically 
named  in  it.  The  difference  between  such  an  appointment, 
and  those  before  illustrated,  is,  that  the  frame  and  tenor  of 
the  appointment,  from  the  nature  of  the  case,  do  not  supply 
the  restrictive  protection  from  the  violation  of  the  Rule  against 
Perpetuities  which  would  have  been  necessary,  were  the 
limitations  incorporated  into  the  instrument  creating  the 
power,  in  lieu  of  that  power,  and  which  is  ordinarily  neces- 
sary in  every  appointment  made  to  an  unascertained  class  of 
issue,  the  children  of  a  person  unborn  at  the  time  of  the  crea- 
tion of  the  power.  Supposing  the  gift  to  be  to  the  first,  second, 
or  third  grandchild,  it  is  evident  that  no  such  limitation 
could  have  been  inserted  in  the  deed  creating  the  power, 
unless  it  were  provided  that  the  object  of  the  gift  should 
come  in  esse,  within  some  life  or  lives  in  being  and  twenty-one 
years.  The  fact  that,  at  the  time  of  the  appointment,  such 

1  See    §§  523  a,  523  b,  post;   1  Drew.   73,    133-137.     Sugd.   Pow. 

Jann.  Wills  (6th  ed.)  315,  318.  (8th  ed.)  397.     Lewis,  Perp.  488; 

1  Routledge    v.    Dorril,  2    Ves.  §§  523  a,  523  b,  post. 
Jr.    357.      Harvey    v.    Stracey,    1 


424  THE   RULE   AGAINST   PERPETUITIES. 

grandchild  has  actually  come  in  esse,  within  a  life  in  being, 
cannot  be  regarded,  in  reference  to  the  question  of  the  validity 
of  the  appointment;  as  the  limitation  must  be  considered,  in 
all  respects,  as  if  it  had  formed  part  of  the  original  settlement, 
and,  at  the  time  of  that  settlement,  it  could  not  be  predicated, 
with  certainty,  that  any  grandchildren  would  be  born  within 
the  boundaries  of  legal  remoteness.  It  seems,  therefore,  an 
inevitable  conclusion,  that  a  gift,  such  as  that  alluded  to,  must 
be  treated  as  void  for  remoteness,  although,  in  fact  and  reality 
the  Rule  against  Perpetuities  is  not  violated  by  it.  The  same 
conclusion  must,  also,  be  arrived  at,  with  respect  to  an  appoint- 
ment to  the  children  of  a  child  unborn  at  the  time  of  the 
creation  of  the  power,  when  that  child  dies  previously  to  the 
appointment,  and  when,  therefore,  according  to  the  course  of 
events,  all  objection,  on  the  score  of  remoteness,  to  the  ap- 
pointment, is,  in  fact,  precluded;  although,  as  such  a  gift 
could  have  been  void,  if  originally  limited,  instead  of  the 
power,  it  is  clearly  insupportable."  l 

§  518.  In  spite  of  the  weight  which  any  opinion  of  Mr. 
Lewis  justly  carries,  these  propositions,  for  which  no  authority 
is  cited,  are,  it  is  submitted,  unsound.  Suppose  an  estate  is 
devised  to  A.  for  life  with  power  to  appoint  by  will,  and  A. 
desires  to  appoint  to  J.  S.,  who  is  the  child  of  a  person  unborn 
at  the  death  of  the  testator.  Now,  according  to  Mr.  Lewis,  if 
A.  says,  "I  appoint  to  J.  S.,  if  J.  S.  is  born  before  my  death," 
the  appointment  is  good.2  But  if  he  says  "I  appoint  to  J.  S." 
the  appointment  is  bad,  although  J.  S.  is  living  at  the  time 
of  the  appointment.  Or,  in  other  words,  an  appointment  to 
a  man  actually  living  at  the  time  of  the  appointment  is  bad, 
unless  the  silly  words  "if  he  is  born  before  the  appointment" 
be  added,  and  this  when  the  very  language  of  the  appointment 
shows  that  he  is  alive.8 

1  Lewis,  Perp.  491,  492.  the  question  of  the  meaning  of  an 

*  See  Lewis,  Perp.  489,  490.  appointment  with  the  question  of 

1  Mr.    Lewis's    error    seems   to  the   validity    of    an    appointment, 

have  sprung  from  his  confounding  See  §§  523  a,  523  b,  post. 


POWERS.  425 

§  519.  That  Mr.  Lewis's  theory  is  not  law  appears  from 
the  case  of  Morgan  v.  Gronow.1  There  A.,  by  virtue  of  a 
power  in  his  marriage  settlement,  appointed  a  fund  upon  a 
trust  to  take  effect  on  the  marriage  of  his  daughter  E.  E. 
subsequently  married,  and  he  then  reappointed  the  fund  upon 
the  same  trusts.  Lord  Selborne,  C.,  sitting  for  the  Master  of 
the  Rolls,  held  that  the  first  appointment  was  void,  but  that 
as  E.  had  become  married  during  the  lifetime  of  the  donee  and 
before  the  reappointment,  the  reappointment  was  good;  yet  a 
limitation  in  the  original  settlement  to  a  daughter  of  A.  on 
her  marriage  would  have  been  too  remote.  The  law  therefore 
may  be  considered  as  settled  against  Mr.  Lewis's  theory,  espe- 
cially in  view  of  the  absurd  consequences  of  that  theory.2 

§  519  a.  Indeed  Mr.  Lewis,  with  his  accustomed  candor, 
makes  an  admission  which  is  fatal  to  his  case.  He  says  that, 
"in  fact  and  reality,  the  Rule  against  Perpetuities  is  not  vio- 
lated by"  the  appointment  in  question.  But  the  only  objec- 
tion to  the  appointment  is  its  remoteness.  If  it  is  not  remote, 
what  right  has  any  court  to  say  "it  must  be  treated  as  void 
for  remoteness"?  The  law  of  remoteness  is  not  based  on 
fictions. 

§  520.  In  applying  the  Rule  against  Perpetuities,  a  differ- 
ence between  the  creation  of  powers  by  deed  and  by  will  should 
be  noted.  Under  a  power  in  a  marriage  settlement  an  appoint- 
ment cannot  be  made  to  grandchildren  of  the  parties  unborn  at 
the  time  of  the  appointment,  for  such  grandchildren's  parents 
were  not  born  at  the  creation  of  the  power; 3  but  under  a  power 
in  a  will  an  appointment  can  be  made  to  grandchildren  of  the 
testator,  although  unborn  at  the  time  of  the  appointment, 
because  their  parents  cannot  be  born  after  the  creation  of  the 
power.4 

1  L.  R.  16  Eq.  1.    And  so  In  re          •  1  Jarm.  Wills  (6th  ed.)  317, 

Coulman,  30  Ch.  D.  186;  §  523  f,  note. 
post.  *  Lewis,  Perp.  492,  493.    Sugd. 

1  But  see  Smith's  Appeal,  88  Pa.  Pow.  (8th  ed.)  397. 
492;  §  523  post. 


426 


THE   RULE   AGAINST   PERPETUITIES. 


§  521.  The  question  of  remoteness  often  comes  up  when 
under  a  power  an  appointment  is  made  to  A.  for  life,  remainder 
as  he  shall  by  will  appoint.  Here,  if  A.  was  alive  at  the  time 
of  the  creation  of  the  original  power,  the  power  given  to  him 
is  good.1  But  if  A.  was  not  born  at  the  time  of  the  creation  of 
the  original  power,  the  power  given  to  him  is  too  remote.2 

§  522.  Other  cases  where  appointments  have  been  held  too 
remote,  under  special  powers  in  marriage  settlements  and  in 
wills,  are  given  in  the  note.8  For  cases  under  general  powers, 
see  §§  524  et  seq. 


1  Phipson  v.  Turner,  9  Sim.  227. 
Slark  v.  Dakyns,  L.  R.  15  Eq.  307; 
L.  R.  10  Ch.  35.   See  Peard  v.  Keke- 
wich,  15  Beav.  166;  (see  Mareden, 
Perp.  28,  29,  80,  251;  Gray,  Re- 
straints   on    Alienation,    (2d    ed.) 
§  1096);  Bell  v.  Bell,  13  Ir.  Ch. 
517.    In  Morse  v.  Martin,  34  Beav. 
500,  the  first  appointee  was,   un- 
doubtedly,  alive  when  the  power 
was  created,  although  this  does  not 
directly  appear,  for  no  objection  of 
remoteness  was  taken. 

2  Wollaston  v.  King,  L.  R.  8  Eq. 
165.    Morgan  v.  Gronow,  L.  R.  16 
Eq.  1.    Whitby  v.  Mitchell,  42  Ch. 
D.  494;  44  Ch.  D.  85.     Treden- 
nick  v.  Tredennick,  [1900]  1  I.  R. 
354.     See  §§  526-526  c,  post. 

1  Under  marriage  settlements.  — 
Brown  &  SiWy's  Contract,  3  Ch.  D. 
156.  Massey  v.  Barton,  7  Ir.  Eq. 
95.  See  In  re  Hallinan's  Trusts, 
[1904]  1  I.  R.  452;  38  Ir.  L.  T.  291. 
Whitby  v.  Mitchell,  42  Ch.  D.  494; 
44  Ch.  D.  85.  In  re  Gage,  [1898] 
1  Ch.  498.  Whitby  v.  Von  Lue- 
decke,  [1906]  1  Ch.  783.  Re  Crich- 
ton's  Settlement,  56  Sol.  J.  398; 
106  L.  T.  R.  588.  Hutchinson 
v.  Tottenham,  [1898]  1  I.  R.  403, 
418.  In  this  last  case,  a  testatrix, 
who,  under  her  marriage  settle- 


ment had  power  to  appoint  to  any 
issue  of  the  marriage  born  in  her 
lifetime,  appointed  to  her  daughter 
S.  for  life,  on  S.'s  death  to  S.'s 
children  born  in  the  lifetime  of  the 
testatrix,  provided  that  if  S.  died 
without  leaving  any  such  children, 
then  to  C.  and  E.,  granddaughters 
of  the  testatrix  born  in  her  life- 
time. S.  was  never  married.  Chat- 
terton,  V.  C.,  held  that  the  appoint- 
ment to  C.  and  E.  was  good.  This 
decision  seems  incorrect.  The  ap- 
pointment to  S.  was  good,  so  was 
the  appointment  to  her  children 
born  in  the  lifetime  of  the  testa- 
trix, because  it  gave  a  vested  in- 
terest to  a  class  determined  not 
later  than  the  death  of  the  testa- 
trix, but  the  gift  over  to  C.  and 
E.  was  on  the  condition  precedent 
that  S.  left  at  her  death  no  such 
children,  and  that  was  a  condition 
which,  looking  to  the  time  of  the 
marriage  settlement,  was  too  re- 
mote. It  does  not  seem  possible 
to  separate  the  contingency  of  S.'s 
not  having  such  children  from  that 
of  her  having  such  children  and  of 
their  predeceasing  her.  See  §§  331 
et  seq.,  ante. 

Under  wills.  —  In  re  Coulrnan, 
30    Ch.    D.    186.      D'Abbadie   t>. 


POWERS.  427 

§  523.  In  Smith's  Appeal l  A.  devised  property  in  trust  for 
B.  for  life,  and  on  her  death  as  she  should  by  will  appoint. 
B.  appointed  to  trustees  in  trust  for  her  children  for  life  with- 
out liability  for  their  debts,  and  directed  that  on  the  death  of 
each  child  its  share  should  go  over.  All  B.'s  children  had  been 
born  in  the  lifetime  of  A.  The  gifts  over  were  held  void  for 
remoteness.  But,  with  submission,  this  was  incorrect.  The 
Court  say  that  B.  might  have  had  children  who  were  not  born 
till  after  A.'s  death.  But  at  B.'s  death,  when  the  appointment 
took  effect,  her  children  were  a  fixed  number  which  could 
neither  be  increased  nor  diminished;  "children"  was  simply 
a  compendious  designation  for  certain  determined  individuals. 
It  will  not  be  questioned  that  if  B.  had  appointed  the  prop- 
erty to  John,  Thomas,  Mary,  &c.,  naming  all  her  children, 
all  of  them  having  been  born  in  the  lifetime  of  A.,  the  gift 
over  on  their  death  would  have  been  good;  for  it  would  have 
been  good  if  inserted  totidem  verbis  in  the  will  of  A.  Now 
that  is  exactly  what  she  has  done:  the  words  of  gift  to  all  the 
children,  as  used  by  B.,  are  identical  in  meaning  with  words 
appointing  to  John,  Thomas,  Mary,  &c.  They  have  not 
merely  turned  out  to  be  the  same  (which  would  not  be  enough), 
but  they  could  never  mean  anything  else;  for  at  her  death, 
when  the  words  of  her  will  became  operative,  her  children  were 
John,  Thomas,  Mary,  &c.,  and  could  never  be  anybody  else. 

Bizoin,  Ir.  R.  5  Eq.  205.    Thomson  the  bottom  of  page  250  of  Marsden 

p.  Livingston,  4  Sandf.  539.    Smith's  on  Perpetuities  it  is  said:  "Thus  if 

Appeal,  88  Pa.  492.     Boyd's  Es-  A.,  being  childless  at  the  creation 

tate  (No.  1),  199  Pa.  487.    Albert  of  a  power  of  appointment  amongst 

v.   Albert,   68   Md.   352.    Thomas  children,  appoints  to  her  son  B., 

v.  Gregg,  76  Md.  169.     Graham  v.  for  life,  with  remainder  to  her  son, 

Whitridge,  99  Md.  248.     Reed  v.  C.,  in  fee,  the  appointment  to  C. 

Mcllvain,     113     Md.     140.       See  is  void  for  remoteness."     This  is 

Brown  v.  Columbia   Finance   Co.,  obviously    a    slip    of    the   learned 

123  Ky.  775.  author.     C.'s  remainder  vesta  on 

And  in  general  see  Harvey  v.  the  execution  of  the  power  at  the 

Stracey,    1    Drew.    73,     133-137;  same  time  as  B.'s  life  estate.    They 

Lewis,    Perp.    484,    485,    488-492;  are  both  alike  good.     §§205,  206, 

Sugd.  Pow.  (8th  ed.)  31,  195,  196,  476  b,  ante. 

396;  Marsden,  Perp.  250-254.    At  »  88  Pa.  492. 


428  THE   RULE   AGAINST   PERPETUITIES. 

The  decision  in  Smith's  Appeal  makes  the  question  turn  upon 
whether  B.  used  one  of  two  expressions,  which,  in  her  will, 
would  have  precisely  the  same  meaning;  and  the  reason  for 
this  distinction  is  that  the  words,  if  used  by  A.,  would  not 
have  had  the  same  meaning.  There  is  no  question  of  public 
policy  involved.  B.  could  confessedly  have  accomplished  her 
object,  if  she  had  used  words  which  in  her  will  would  mean 
exactly  the  same  as  the  words  she  has  used,  neither  more  nor 
less;  not,  it  must  be  again  observed,  words  which  have  turned 
out  to  mean  the  same,  but  words  which  at  and  from  the  time 
of  their  going  into  effect  could  never  possibly  mean  anything 
else.  Such  verbal  and  arbitrary  distinctions  are  entirely  op- 
posed to  the  spirit  of  the  Rule  against  Perpetuities,  which, 
though  severe,  is  rational.1  Morgan  v.  Gronow  is  opposed  to 
Smith's  Appeal.2 

§  523  a.  Mr.  Lewis's  remarks 3  and  the  decision  in  Smith's 
Appeal  seem  to  have  been  prompted  by  confounding  two  sep- 
arate questions:  (1)  What  appointment  is  in  fact  made? 
(2)  Was  it  certain  at  the  time  of  the  creation  of  the  power 
that  such  appointment,  if  made,  would  vest  within  twenty-one 
years  after  lives  in  being?  The  first  question  is  to  be  deter- 
mined by  considering  what  the  language  of  the  appointment 
means  as  used  by  the  donee,  at  the  time  he  uses  it;  and  thus 
having  found  out  what  appointment  the  donee  means  to 
make,  the  second  question  is  to  be  asked,  viz.:  was  it  certain, 
when  the  power  was  created,  that,  if  the  donee  should  ever 
make  the  appointment  he  has  in  fact  made,  it  must  vest  within 
the  required  limits?  Therefore  all  present  unconditioned  ap- 
pointments by  a  donee  living  when  the  power  was  created 
are  good;  for  they  take  effect,  if  by  deed,  in  his  lifetime;  if 
by  will,  immediately  on  his  death.  So  all  appointments  on 
the  death  of  persons  living  when  the  power  was  created  are 
good.  It  makes  no  difference  that  the  appointment  is  in  form 

1  See  §§  615  et  seq.,  ante;  Morgan  *  And  so  is  In  re  Coulman,  30 

v.  Gronow,  L.  R.  16  Eq.  1;  §  519,      Ch.  D.  186;  §  523  f,  post, 
ante.  *  517,  ante. 


POWERS.  429 

to  a  class,  if  the  class  is  closed  before  the  appointment,  as  in 
Smith's  Appeal;  or  that  a  condition  is  in  terms  attached  to 
the  appointment,  if  the  condition  is  in  fact  fulfilled  before  the 
appointment,  as  in  Morgan  v.  Gronow.  The  error  in  Smith's 
Appeal  was  that  the  Court  went  to  the  creation  of  the  power, 
not  only  to  determine  the  validity  of  the  appointment  (which 
was  right),  but  to  determine  the  meaning  of  the  appointing 
instrument  (which  was  wrong).  It  considered  not  what 
the  words  of  appointment  meant  as  used  by  the  donee,  but 
what  they  would  have  meant  if  used  by  the  creator  of  the 
power. 

§  523  6.  The  happily  turned  but  ambiguous  phrase  that 
an  appointment  should  be  considered  "as  if  written  into  the 
original  instrument"  was,  probably,  the  source  of  the  error.1 
The  statement  is  true  if  understood  of  the  validity  of  an 
appointment.  It  is  not  true  if  understood  of  the  meaning  of 
the  words  used  in  making  an  appointment.  The  Court,  in 
Smith's  Appeal,  seems  to  have  adopted  and  applied  the  expres- 
sion without  sufficient  consideration  of  its  true  force;  and 
consequently  a  wholly  proper  gift  was  rendered  void  by  the 
imposition  of  an  arbitrary  requirement,  not  called  for  by  the 
Rule  against  Perpetuities  nor  by  public  policy.  These  were 
perfectly  protected  by  subjecting  the  appointment  to  the  test 
given  in  the  preceding  section.  And  what  was  this  arbitrary 
requirement?  It  was  that  words  were  not  to  be  given  the 
meaning  which  they  really  had  when  used  by  the  person 
using  them,  but  the  meaning  which  they  would  have  had  if 
used  at  some  other  time  by  some  other  person.  That  is,  a 
fiction  was  invoked,  for  no  useful  end,  to  defeat  a  lawful  object. 
It  is  easier  to  believe  that  the  decision  passed  per  incuriam 
than  that  the  learned  Court  deliberately  contemplated  such  a 
result.  The  history  of  the  Rule  against  Perpetuities  is  full  of 
slips  by  eminent  judges,  often  acknowledged  by  themselves.2 

1  See  White  v.  Commissioner  for  2  It  was  also    held    in  Smith's 

Stamps,  8  N.  S.  Wales  State  Rep.  Appeal  that  not  only  the  gifts  over 
287,  292.  on  the  death  of  B.'s  children,  but 


430 


THE    RULE   AGAINST   PERPETUITIES. 


§  523  c.  In  Wilkinson  v.  Duncan1  W.,  who  died  in  1836, 
bequeathed  the  residue  of  his  personal  estate  to  trustees  on 
trust  for  his  nephew  G.  for  life,  and  on  G.'s  death  on  trust  for 
such  one  or  more  of  G.'s  children  as  G.  by  deed  or  will  should 
from  time  to  time  appoint.  G.  by  will,  made  in  1858,  ap- 
pointed £2,000  to  each  of  his  daughters  when  they  should 
respectively  attain  twenty-four  years.  G.  left  four  daughters, 
all  infants,  three  being  more  and  one  less  than  three  years  of 
age.2  Lord  Romilly  held  that  each  of  the  daughters  who  was 
over  three  years  of  age  took  £2,000  when  she  reached  twenty- 
one  years.  This  case  has  been  followed  in  Von  Brockdorff 
v.  Malcolm,3  In  re  Thompson*  In  re  Hallinan's  Trusts,5  and 
White  v.  Commissioner  for  Stamps.6 

§  523  d.  These  decisions  seem  correct.  The  appointment 
was  to  each  daughter,  as  much  as  if  she  had  been  mentioned 
by  name,  to  her  with  all  her  qualities,  among  which  was  that 


that  the  life  estates  appointed  to 
them  by  their  mother,  were  too  re- 
mote. This  was  certainly  wrong. 
See  §239,  ante.  Cf.  Gardette's 
Estate,  16  Phila.  264;  13  W.  N.  C. 
(Pa.)  315;  §239  a,  ante.  On  this 
point  Smith's  Appeal  has  been 
overruled.  Lawrence's  Estate,  136 
Pa.  354. 

Further,  the  shares  of  B.'s  chil- 
dren were  separate  and  independent 
at  the  time  of  her  death,  and  for 
this  reason  also  the  decision  was 
wrong.  See  §  395,  ante. 

The  author  is  indebted  to  the 
kindness  of  William  Henry  Rawle, 
Richard  M.  Cadwalader,  and  R. 
Mason  Lisle,  Esquires,  of  the  Phil- 
adelphia Bar,  for  an  instructive 
correspondence  on  Smith's  Appeal. 
His  learned  friends  are  not,  how- 
ever, to  be  considered  as  in  any  way 
responsible  for  his  conclusions. 
The  correctness  of  the  opinion  in 
Smith's  Appeal  has  been  ques- 


tioned by  the  learned  Chief  Justice 
who  wrote  it.  Coggins'  Appeal, 
124  Pa.  10,  30,  31.  See  Estate  of 
Lawrence,  136  Pa.  354,  367;  18 
Am.  &  Eng.  Enc.  of  Law  (1st 
ed.)  357,  358;  Foulke;  Treatise, 
§§  395  et  seq. 

1  30   Beav.    Ill;    s.  c.  7   Jur. 

N.  8.  1182. 

1  This  is  not  stated  in  Beavan, 
but  appears  in  the  report  in  the 
Jurist. 

«  30  Ch.  D.  172. 

«  [1906]  2  Ch.  199. 

*  [1904]  1 1.  R.  452;  see  38  Ir.  L. 
T.  291.    And  see  also  1  Jarm.  Wills 
(6th  ed.)  330.     On  In  re  Wright, 
[1906]  2  Ch.  288,  see  23  Law  Quart. 
Rev.  9;  11  Enc.  Laws  of  Eng.  (2d 
ed.)  75;  1  Jarm.  Wills   (6th  ed.) 
318. 

•  8  N.  S.  Wales  State  Rep.  287. 
See  Bartlett  v.  Sears,  81  Conn.  34, 
46. 


POWERS.  431 

she  was  over  three  years  of  age.  If  the  bequest  had  been  to  G. 
for  life,  and  on  his  death  £2,000  to  be  paid  to  each  of  his 
daughters  then  over  three  years  old  who  should  reach  twenty- 
four,  such  bequest  would  have  been  good,  and  by  combining  the 
original  bequest  and  the  appointment  that  is  what  we  get.  If 
the  appointment  is  to  a  determined  person,  and  if  a  gift  to  such 
person,  with  all  his  or  her  qualities,  would  be  good  if  made  in 
the  original  instrument  creating  the  power,  then  the  appoint- 
ment is  good.  If  there  is  any  contingency  in  the  appointment, 
then  there  will  be  the  same  contingency  when  it  is  read  into 
the  instrument  creating  the  power,  as,  for  instance,  when  there 
is  an  appointment  by  deed  to  the  donee's  children;  but  where 
there  is  no  contingency  in  the  appointment,  then  the  original 
bequest  is  to  a  defined  person,  and  if  it  is  certain  that  a  gift  to 
such  a  defined  person  must  take  place,  if  at  all,  within  the 
required  limits  then  it  is  good.1 

§  523  e.  A  limitation  by  means  of  a  power  and  appointment 
is  subject  to  the  same  rules  as  a  limitation  by  direct  gift;  both 
have  to  be  of  such  a  nature  from  the  beginning  that  they  must 
vest,  if  at  all,  within  the  required  period.  The  advantage  of  the 
power  and  appointment  over  the  direct  gift  is  that  the  donee 
of  the  power,  acting  at  a  later  period,  can  effect  a  desired  object 
by  a  limitation  which  will  be  good,  although  this  could  not 
have  been  foreseen  when  the  power  was  created.  For  instance, 
suppose  a  testator  desires  that  his  grandchildren  should  not 
take  until  they  are  twenty-five,  he  can  make  a  gift  to  those  of 
his  grandchildren,  being  four  years  old  at  his  son's  death,  who 
reach  twenty-five,  but  he  will  not  want  to  do  this,  because  it 
will  cut  off  entirely  grandchildren  who  may  not  be  four  years 
old  at  his  son's  death;  but,  if  he  gives  a  power  to  the  son,  then, 
if  it  in  fact  turns  out  that  all  the  grandchildren  are  over  four 
years  old  at  the  son's  death,  the  son  can  appoint  by  will  to 
those  of  his  children  who  are  four  years  old  at  his  death  (or, 
what  is  the  same  thing,  to  all  his  children),  when  they  reach 
twenty-five,  without  the  risk  of  omitting  one. 

1  A  note  by  the  author,  5  Harv.  Law  Rev.  348,  to  the  contrary,  is  unsound. 


432  THE   BULB   AGAINST  PERPETUITIES. 

§  523  /.  The  case  of  In  re  Coulman l  involved  the  same 
principle.  C.  devised  real  estate  to  trustees  in  trust  to  sell  and 
pay  the  interest  of  the  proceeds  to  his  wife  for  life,  and  on  her 
death  in  trust  to  pay  the  proceeds  unto  such  of  his  two  daugh- 
ters, "for  such  interest  or  interests,  with  such  limitations  over 
for  or  in  favor  of  them  or  other  issue"  as  his  wife  should  by 
deed  or  will  appoint.  The  wife  by  will  appointed  that  half 
of  the  trust  fund  should  be  held  in  trust  to  pay  the  income  to 
all  the  children  living  at  her  own  decease  of  one  of  the  daughters 
who  had  died  before  her,  as  tenants  in  common,  for  life,  and 
that  after  the  death  of  each  child,  the  share  to  the  income  of 
which  such  child  was  entitled  should  be  paid  as  such  child 
should  by  will  appoint,  and  in  default  of  appointment  to 
"his  or  her  next  of  kin,  exclusive  of  the  husband  of  any  mar- 
ried female  child."  There  were  four  children  of  the  deceased 
daughter,  three  only  of  whom  were  born  in  the  lifetime  of 
C.  Pearson,  J.,  held,  that  the  appointments  to  the  next  of 
kin  of  those  children  of  the  daughter  who  were  born  within  the 
lifetime  of  C.  were  not  too  remote;  and  that  if  the  next  of 
kin  of  any  child  turned  out  to  be  its  issue,  the  appointment 
was  warranted  by  the  terms  of  the  power;  but  that  the  gift 
to  the  next  of  kin  of  the  child  who  was  not  born  till  after 
C.'s  death  was  too  remote.2 

§  524.  If  a  power  is  given  to  A.  to  appoint  property  by  deed 
or  will  to  whom  he  pleases,  he  has  the  absolute  control  over  it. 
He  can  deal  with  the  property  as  if  he  owned  it  in  fee.  There- 
fore, in  the  execution  of  such  a  power,  the  remoteness  of  an 
appointment  under  it  is  to  be  judged  from  the  point  of  time 
of  its  exercise,  and  not  from  the  time  of  its  creation.  The 
appointment  can  be  considered  an  appointment  to  the  donee 
himself  and  then  a  settlement  of  his  own  property.  The 
text-writers  all  agree  that  such  is  the  law; 3  and  this  opinion 

1  30  Ch.  D.  186.  Pow.  (8th  ed.)  394-396.    Co.  Lit, 
*  The  headnote  of  this  case  is  271  b,  Butler's  note,  VII.  2.    Mars- 
inadequate,  den,  Perp.  250.    1  Jarm.  Wills  (6th 
1  Lewis,  Perp.  483,  484.    Sugd.  ed.)  320.     Theob.  Wills  (7th  ed.) 


POWERS.  433 

is  so  eminently  sensible  and  so  in  accordance  with  the  spirit 
of  the  Rule  against  Perpetuities,  that  a  contrary  decision  is 
not  to  be  anticipated.  The  view  of  Mr.  Powell  in  his  note  to 
Fearne,1  that  the  exercise  of  general  powers  is  the  same  in  the 
matter  of  perpetuity  as  that  of  special  powers,  has  not  had 
any  following. 

§  525.  A  power  which  the  donee  can  execute  by  deed  or 
will,  but  which  in  its  exercise  is  confined  to  certain  objects, 
must,  of  course,  be  so  exercised  that  the  appointment  will  be 
good  from  the  time  of  the  creation  of  the  power.  The  donee 
of  the  power  never  has  the  absolute  control. 

§  526.  Whether  appointments  under  powers,  general  in 
their  scope,  but  to  be  exercised  only  by  will,  must  be  referred 
to  the  date  of  the  creation  of  the  power,  is  a  question  not  free 
from  difficulty.  In  Powell's  Trusts 2  property  was  devised  by 
A.  to  B.  for  life,  remainder  as  B.  should  by  will  appoint.  James, 
V.  C.,  held  that  the  validity  of  an  appointment  by  B.  must  be 
determined  with  reference  to  A.'s  death.  So  when,  under  a 
power  in  a  marriage  settlement  to  appoint  to  children,  an 
appointment  is  made  to  a  child  for  life,  remainder  as  the 
child  shall  by  will  appoint,  it  has  been  held  that  any  appoint- 
ment by  the  child  must  be  referred  to  the  date  of  the  settle- 
ment, and  is  therefore  bad.3  On  the  other  hand,  in  Davidson's 

610.    3  Dav.  Prec.  Conv.  (3d  ed.)  by  deed  or  will  in  fact  appointed 

154,  155.    Tud.  L.  C.  in  Real  Prop,  by  will. 

(4th  ed.)  607,  608.     Leake,  Land  »  2  Fearne,  C.  R.  (4th  ed.)  374. 

Law,  458,   459.     1   Perry,   Trusts  l  39  L.  J.  Ch.  188. 

(6th    ed.)    §  383,    note.      Foulke,  *  Wollaston  v.  King,  L.  R.  8  Eq. 

Treatise,  §§  400,  401.    See  Bray  v.  165.    Morgan  v.  Gronow,  L.  R.  16 

Bree,   §  477,  ante;   Tredennick   v.  Eq.  1,  9,  10.    Genet  v.  Hunt,  113 

Tredennick,  [1900]  1  I.  R.  354,  363.  N.  Y.  158.    Boyd's  Estate,  199  Pa. 

The  case  of  Mifflin's  Appeal,  121  487.     Reed  v.  Mcllvain,  113  Md. 

Pa.  205,  so  holds.    This  is  the  first  140.      Tredennick    v.    Tredennick, 

case  in  which  the  question  is  dis-  [1900]  1  I.  R.  354.     Re  Phillips,  28 

cussed  by  the  Court.     See  Law-  Ont.   L.   R.   94.     See   Lawrence's 

rence's  Estate,   136  Pa.  354,  364.  Estate,  136  Pa.  354,  364;  Bartlett 

It  should  be  observed  that  both  in  v.  Sears,  81  Conn.  34,  42;  Perry, 

Bray  v.  Bree  and  Mifflin's  Appeal  Trusts  (6th  ed.)  §  383,  note;  App. 

the  donee  of  the  power  to  appoint  L.,  §§  948  et  seq.,  post. 


434  THE  RULE   AGAINST  PERPETUITIES. 

Precedents  of  Conveyancing,1  it  is  said  that  until  Wollaston  v. 
King,  an  appointment  such  as  was  made  in  that  case  would 
have  been  considered  not  too  remote;  and  in  Rons  v.  Jackson? 
Chitty,  J.,  decided  that  when  property  was  settled  on  C.  for 
life,  and  at  her  death  as  she  should  by  will  appoint,  the  valid- 
ity of  an  appointment  by  C.  was  to  be  determined  only  with 
reference  to  the  date  of  C.'s  will,  and  not  of  the  settlement. 

§  526  o.  It  would  seem  to  make  no  difference  whether  the 
donee  of  the  general  power  of  appointment  by  will  takes  it 
directly  by  deed  or  will,  or  whether  he  takes  it  as  appointee 
under  a  special  power.  In  either  case,  a  devise  or  appoint- 
ment to  him  in  fee  would  have  been  good,  and  in  both  cases 
the  question  is  whether  a  power  of  appointment  by  will  (or  a 
life  estate,  coupled  with  a  power  of  appointment  by  will)  can,  so 
far  as  the  Rule  against  Perpetuities  is  concerned,  be  substituted 
for  the  fee.  Therefore  Wollaston  v.  King,  Morgan  v.  Gronow, 
and  the  other  cases  cited  in  note  3  to  the  preceding  section 
stand  together  with  Powell's  Trusts 3  in  holding  that  appoint- 
ments under  a  general  power  exercisable  by  will  only  must 
be  referred  to  the  time  of  the  creation  of  the  power,  in  opposi- 
tion to  Rous  v.  Jackson*  and  the  other  cases  cited  in  note  2.6 

§  526  6.  And  principle  as  well  as  the  weight  of  authority 
seems  to  be  with  Powell's  Trusts.  Take,  for  instance,  a  devise 
by  A.  to  B.  for  life,  remainder  as  B.  shall  by  will  appoint, 
and  B.  appoints  to  C.,  who  was  not  born  when  A.  died,  for 
life,  remainder  to  such  of  C.'s  issue  as  survive  him.  Reg- 
ularly, the  appointment  is  to  be  considered  as  if  made  at  the 
date  of  the  original  instrument.  If  that  be  done,  then  we  have 

1  3  Dav.  Prec.  Conv.  (3d  ed.)  son,    more   fully   stated,    App.    I, 

156,    note.     See   Co.    Lit.    379  6,  §§  909  et  seq.,  post. 
Butler's  note.  3  39  L.  J.  Ch.  188. 

*  29  Ch.  D.  521.    Rous  v.  Jack-          4  29  Ch.  D.  521.     See  this  case 

son  was  followed  by  In  re  Flower,  more  fully  stated,  App.  I,  §§  910 

55  L.  J.  Ch.  200,  53  L.  T.  R.  717;  et  seq.,  post. 

and  by  Stuart  v.  Babington,  27  Ir.  «  But    see   further   §§  956-962, 

L.  R.  551.    See  Wms.  Pers.  Prop.  post.    The  distinction  taken  in  the 

(17th  ed.)  413.    See  Rous  v.  Jack-  first  edition  of  this  book  seems  not 

sustainable. 


POWERS.  435 

an  estate  to  B.  for  life,  remainder  to  C.  for  life,  remainder  to 
those  of  C.'s  children  who  survive  him.  Such  a  gift  to  C.'s 
children  would  be  bad.  Now,  it  is  true  that  when  the  donee 
of  a  power  can  exercise  it  by  either  deed  or  will,  the  question 
of  remoteness  does  not  date  from  the  creation  of  the  power; 
but  this  exception  to  the  strict  operation  of  the  rule  is  made 
because  the  donee  can  at  any  time  appoint  to  himself,  and 
therefore  is  practically  the  owner.  But  here  B.  is  not  practi- 
cally the  owner;  he  cannot  appoint  to  himself;  he  is,  indeed, 
the  only  person  to  whom  he  cannot  possibly  appoint,  for  he 
must  die  before  the  transfer  of  the  property  can  take  place.  Or, 
to  put  it  in  another  way,  the  Rule  against  Perpetuities  for- 
bids the  creation,  directly  or  indirectly,  of  any  future  gifts 
upon  a  remote  condition  precedent;  but  it  is  a  practical  rule 
devoted  to  a  practical  object.  When  a  man  has  the  present 
absolute  interest  in  property,  he  can  deal  with  it  without  regard 
to  the  previous  history  of  the  title.  In  applying  the  Rule 
against  Perpetuities  to  any  settlement  or  devise  he  may  make, 
it  is  unnecessary  to  consider  what  limitations  the  property  was 
subject  to  before  it  came  into  his  hands.  And  if  a  man  has  the 
present  unconditioned  right  to  acquire  the  present  absolute 
interest,  he  is  regarded  by  the  Rule  against  Perpetuities  as 
already  having  such  interest.  A  tenant  in  tail  is  such  a  person; 
a  donee  of  a  general  power  exercisable  by  deed  is  also  such  a 
person.  To  this  extent  the  Rule  sacrifices  form  to  substance; 
but  the  substance  must  be  there.  There  must  be  a  person 
who  has  the  immediate  right  to  become  the  present  absolute 
owner.  Such  is  not  the  case  when  the  donee  of  a  power  can 
exercise  it  only  by  will.  The  general  rule  must  govern  unless 
the  exception  is  made  out,  and  the  exception  is  not  made  out 
unless  there  be  a  present  right  to  acquire  the  present  absolute 
interest.1  The  question  is  further  treated  in  Appendix  L, 
§§  948  et  seq.,  post. 

§  526  c.   It  might  be  suggested  that  the  donee  of  a  general 
power  to  be  exercised  only  by  will,  has  an  immediate  absolute 
1  See  Mifflin's  Appeal,  121  Pa.  205,  214,  215,  222,  223. 


436  THE  RULE   AGAINST  PERPETUITIES. 

control  of  the  estate  by  contracting  to  execute  the  power.  But, 
apart  from  other  objections,  a  contract  to  exercise  a  power 
to  appoint  by  will  cannot  be  decreed  to  be  specifically 
performed.1 

§  527.  A  general  power  exercisable  by  deed,  but  only  by 
consent  of  third  persons,  is  not  equivalent  to  the  ownership  in 
fee,  and  is  therefore  treated  like  a  special  power.2 

§  528.  If,  by  an  indenture  to  which  a  person  to  whom  an 
appointment  can  lawfully  be  made  is  party,  an  appointment 
is  made  to  persons  to  whom  it  could  not  have  been  directly 
made,  the  appointment  is  nevertheless  good  if  such  party  to  the 
indenture  could  have  lawfully  made  a  transfer  to  those  persons, 
had  the  property  been  appointed  to  him.  That  is,  the  inden- 
ture is  considered  as  being  really  two  instruments,  —  one  an 
appointment  to  the  person  to  whom  the  appointment  could  law- 
fully be  made,  and  the  other  a  conveyance  or  settlement  by  him. 

§  529.  The  question  has  always  been  discussed  in  the  form 
whether  the  actual  appointees  were  objects  of  the  power. 
But  it  is  obvious  that  in  many  of  the  cases  the  Rule  against 
Perpetuities  has  been  involved,  although  Jarman  on  Wills 3 
seems  to  be  the  only  book,  among  either  the  reports  or  trea- 
tises, where  attention  is  called  to  this.4  Thus  suppose  A.,  by 
his  marriage  settlement,  has  a  power  of  appointing  among  his 
issue,  and  that,  on  the  marriage  of  a  daughter,  by  a  settlement 
to  which  she  and  her  husband  are  parties,  A.  appoints  to  her 
for  life,  with  remainder  to  her  children,  the  children  will 
take,  although  a  simple  appointment  to  them  would  have 
been  bad  for  remoteness.5 

1  See  Reid  v.  Shergold,  10  Ves.  533;  L.  R.  8  Ch.  419;  §  440,  ante. 

370;  In  re  Parkin,  [1892]  3  Ch.  510;  See  Marsden,  Perp.  253. 

In  re  Lawley,  [1902]   2   Ch.  673;  «  1  Jarm.  Wills    (5th   ed.)  259, 

[1902]  2  Ch.  (C.  A.)  799;  sub  nom.  note. 

Beyfus  v.  Lawley,  [1903]  A.  C.  411;  *  See,  however,  Morgan  v.  Gro- 

Bentham  v.  Smith,  1  Cheves,  Eq.  now,  L.  R.  16  Eq.  1,  10,  11. 

33;  In  re  Walsh's  Trusts,  1  L.  R.  6  The  following  decisions  seem 

Ir.  320.  to  involve  the  proposition  that  such 

*  Webb  v.  Sadler,  L.  R.  14  Eq.  appointments  are  not  too  remote. 

Langston  v.  Blackmore,  Amb.  289. 


POWERS.  437 

§  530.  As  at  common  law  the  personal  property  of  a  married 
woman  passes  to  her  husband,  his  joining  in  a  deed  of  set- 
tlement of  such  property  without  her  seems  to  have  been 
sufficient.1  Of  course  this  will  be  otherwise  under  the  mod- 
ern Married  Women's  Acts.2  In  Daniel  v.  Arkwright, 3  under 
a  power  in  a  marriage  settlement  to  appoint  to  children,  an 
appointment  was  made  to  trustees  on  the  trusts  of  a  con- 
temporaneous marriage  settlement  of  a  daughter  executed 
by  her.  It  was  held  that  the  appointment  was  good.  In  the 
same  case  there  was  an  appointment  by  a  deed  poll  in  favor  of 
another  daughter,  who  was  already  married,  for  life,  and  after 
her  death  to  her  husband  and  children.  This  appointment 
was  held  bad,  but  on  evidence  that  the  appointor's  intention 
failed,  by  the  mistake  of  his  solicitor,  to  be  carried  out,  the 
deed  was  rectified  so  as  to  appoint  to  the  daughter  absolutely.4 

§  530  a.  In  Birley  v.  Birley  8  (1858)  A.,  who  had  power  to 
appoint  to  one  or  more  of  his  children,  ten  in  number,  made 
an  appointment  to  two  of  them.  The  next  year  the  appoin- 
tees settled  the  property  appointed  to  them  upon  trusts  for 
the  children  and  grandchildren  of  A.,  by  a  deed  which  re- 
cited that  at  the  time  of  the  appointment  it  was  understood 
between  A.  and  the  appointees  that  they  should  consider  them- 
selves as  possessed  of  the  property  appointed  upon  the  said 
trusts.  Lord  Romilly,  M.  R.,  held  that  the  appointment  was 
void  as  in  fraud  of  the  power.  He  said,  speaking  of  "Routledge 

Routledge  v.  Dorril,  2  Ves.  Jr.  357.  2  L.  C.  in  Eq.  (7th  ed.)  318;  3  Dav. 

Cosset's  Settlement,  19  Beav.  529,  Conv.  (3d  ed.)  145,  note. 

537.     See  White  v.  St.   Barbe,   1  *  See  Fitzroy  v.  Richmond,  27 

V.   &   B.   399;   Trollope  v.   Rout-  Beav.  190. 

ledge,  1  De  G.  &  Sm.  662;  Wright  *  Cf.  Wombwell  v.  Hanrott,  14 

v.  Goff,  22  Beav.  207;  Thompson  v.  Beav.  143. 

Simpson,   1   Dr.   &  W.   459,   487;  8  2  H.  &  M.  95. 

Irwin    v.    Irwin,    10    Ir.    Ch.    29;  4  The  limits  of    this    apparent 

Conolly  v.  M'Dermott,  Beat.  601  exception   to   the   rules   governing 

(see   Sugd.    Law    Prop.    513-515);  the  exercise  of  powers  is  well  stated 

1  Jarm.  Wills  (5th  ed.)  259,  note;  in  Morgan  v.  Gronow,  L.  R.  16  Eq. 

Sugd.  Pow.  (8th  ed.)  670,  671;  Tud.  1,  10,  11. 

L.  C.  in  Real  Prop.  (4th  ed.)  569;  •  25  Beav.  299. 


438  THE   RULE   AGAINST   PERPETUITIES. 

v.  Dorril  and  that  class,  they  simply  lay  down  the  proposition, 
that  when  the  donee  of  a  power  intends  to  appoint  and  the 
appointee  intends  to  settle  the  property,  the  whole  may  be 
effected  by  one  deed  or  one  instrument,  and  the  appointment 
and  settlement  may  be  made  simultaneously;  but  if  the  reason 
of  the  appointment  being  made  to  the  appointee  arises  from  a 
previous  contract  with  the  donee  of  the  power  to  appoint  to 
persons  not  objects  of  the  power,  I  find  no  previous  case  which 
amounts  to  a  decision  that  such  an  appointment  can  be  sup- 
ported in  this  court."  l 

§  530  6.  In  Pryor  v.  Pryor 2  a  like  decision  was  made  on 
similar  facts.  Lord  Justice  Turner,  however,  distinguished 
the  case  of  an  appointment  to  a  daughter  on  marriage  and  a 
contemporaneous  settlement  by  her  on  herself,  her  husband,  and 
children,  and  thought  this  was  not  a  fraud  on  the  power.3  In 
Turner's  Estate  *  Fry,  L.  J.,  said:  "It  appears  to  us  to  be  further 
plain  that  the  mere  existence  of  an  antecedent  contract  be- 
tween the  donee  of  the  power  and  the  appointee  for  a  re- 
settlement conferring  benefits  on  a  stranger  is  not  enough  to 
invalidate  the  appointment.  .  .  .  But  if  the  court  find  not 
only  that  there  was  an  antecedent  contract,  but  that  the  con- 
tract was  the  causa  sine  qua  non  of  the  appointment,  .  .  . 
then  the  case  is  different,  and  the  appointment  is  bad."  6 

§  530  c.  The  cases  in  the  last  two  sections  raised  the  ques- 
tion of  an  alleged  fraud  on  the  power.  That  question  is  not 
raised  in  considering  remote  limitations  under  appointments. 
Suppose  A.,  having  a  power  of  appointment  by  deed  among 
his  issue,  joins  with  his  daughter  (who  was  unborn  at  the 
creation  of  the  power)  in  her  marriage  settlement,  by  which 
the  property  is  limited  to  the  daughter  for  life,  and  on  his  death 
to  those  of  her  issue  who  survive  her.  There  is  no  question 
here  of  fraud  on  the  power;  all  the  limitations  are  within  its 

1  See  Salmon  v.  Gibbs,  3  De  G.          *  Cf.  In  re  Turner's  Estate,  28 
&  Sm.  343;  2  L.  C.  in  Eq.  (7th  ed.)      Ch.  D.  205,  213,  214. 
315  et  seq.  *  Id.  216,  217. 

1  2  De  G.  J.  &  S.  205.  •  See  In  re  Crawshay,  43  Ch.  D. 

615. 


POWERS.  439 

terms;  the  only  question  is  whether  the  limitations  are  too 
remote.  We  have  seen  x  that  they  are  not  too  remote,  that  the 
marriage  settlement  is  analyzed  into  an  appointment  by  the 
donee,  and  a  settlement  by  the  appointee.  Suppose,  then,  fur- 
ther that  the  donee  of  the  power  and  his  daughter  covenant 
together  that  such  a  marriage  settlement  shall  be  made,  so 
that  the  covenant  raises  an  equitable  estate,  such  equitable 
estate,  it  is  presumed,  would  not  be  too  remote. 

§  530  d.  Now  to  go  a  step  farther.  Let  A.  have  a  power  to 
appoint  among  his  issue  by  deed.  By  his  own  marriage  settle- 
ment let  A.  covenant  with  the  trustees  of  the  settlement  that 
he  will  appoint  the  property  to  the  eldest  daughter  that  may 
be  born  to  him  with  remainder  to  her  children,  and  afterwards 
by  the  daughter's  marriage  settlement,  in  which  the  daughter 
joins,  let  such  an  appointment  be  made.  Here  the  equitable 
estate  raised  to  the  unborn  children  of  an  unborn  daughter  by 
the  covenant  is  void  for  remoteness.  The  appointment  to  the 
unborn  children  of  the  daughter,  contained  in  A.'s  marriage 
settlement,  being,  therefore,  void,  A.  still  has  the  control  over 
the  power,  and  the  marriage  settlement  of  the  daughter  would 
seem  to  be  good.2 

4.   Consequences  of  an  Appointment  being  too  remote. 

§  531.  (1)  If  an  appointment  which  is  not  too  remote  is 
followed  by  an  appointment  which  is  too  remote,  if ,  for  instance, 
under  a  power  given  by  will  to  appoint  among  issue,  an  appoint- 
ment is  made  to  a  grandchild  of  the  testator  unborn  at  the  tes- 
tator's death,  for  life,  and  on  its  death  to  its  children,  although 
the  latter  appointment  is  too  remote,  the  appointment  to  the 
grandchild  is  good.8 

§  532.   (2)   The  validity  of  limitations  to  take  effect  after 

1  §  528,  ante.  248.    See  Wollaston  v.  King,  L.  R. 

1  Cf.  Cooke  v.  Cooke,  38  Ch.  D.  8  Eq.  165;  Morgan  v.  Gronow,  L.  R. 

202;  Whitby  v.  Mitchell,  42  Ch.  D.  16  Eq.  1;  D'Abbadie  v.  Bizoin, 

494;  44  Ch.  D.  85.  Ir.  R.  5  Eq.  205;  Sugd.  Pow.  (8th 

»  Routledge  v.  Dorril,  2  Ves.  Jr.  ed.)  503;  Lewis,  Perp.  496;  Mare- 

357.  Graham  v.  Whitridge,  99  Md.  den,  Perp.  258. 


440  THE   RULE   AGAINST  PERPETUITIES. 

prior  limitations  which  are  too  remote  has  been  before  dis- 
cussed.1 Appointments  should  be  governed  by  the  same 
rules.2 

§  533.  (3)  When  an  appointment  of  personal  property  fails 
as  being  too  remote,  the  property  passes  under  a  residuary  ap- 
pointment.3 Under  the  Wills  Act,4  which  provides  that  void 
devises  shall  fall  into  a  residuary  devise,  it  was  held  by  Jessel, 
M.  R.,  in  Freme  v.  Clement,5  that  on  an  appointment  of  real 
estate,  bad  for  remoteness,  the  estate  passed  under  a  residuary 
appointment.  The  learned  judge  seemed  to  assume  that  had  it 
not  been  for  the  Wills  Act  the  land  would  not  have  passed 
under  the  residuary  appointment,  but  would  have  gone  as 
limited  in  default  of  appointment.  And  this  appears  to  be  cor- 
rect. The  provision  of  the  Wills  Act  has  been  largely  adopted 
in  America.6 

§  534.  When  there  is  no  residuary  appointment,  property 
appointed  too  remotely,  whether  real  or  personal,  goes  as  in 
default  of  appointment.7 

§  535.  So  when  the  power  itself  is  bad,  limitations  in  default 
of  appointment,  being  vested,  take  effect  as  if  the  power  had 
been  omitted.8 

§  536.  (4)  The  connection  of  the  doctrine  of  cy  pres  in  the 
exercise  of  powers  with  the  Rule  against  Perpetuities  is  dis- 
cussed later.9 

1  §§  251-258,  ante.  over  in  the  nature  of  an  executory 

2  See  also  Lewis,  Perp.  496,  497;  devise   which   is   too   remote,    the 
Marsden,  Perp.  258.  appointee  of  the  fee  or  absolute 

3  Wollaston  v.  King,  L.  R.  8  Eq.  interest  will,  it  is  presumed,  con- 
165.     See  In  re  Abbott,   [1893]  1  tinue  to  hold  it.     §  247,  ante;  but 
Ch.  54,  59.  see  §§  783  et  seq.,  post. 

*  1  Viet.  c.  26,  §  25.  8  Marlborough  v.  Godolphin,  1 
5  18  Ch.  D.  499.  Eden,    404;   sub  nom.   Spencer   ». 

•  See  §  248,  ante.  Marlborough,  3  Bro.  P.  C.  (Toml. 
7  Webb  v.  Sadler,  L.  R.  14  Eq.      ed.)  232.     In  re  Abbott,  [1893]  1 

533.      Graham    v.    Whitridge,    99  Ch.    54.      See    Carr   v.    Atkinson, 

Md.  248.     Sugd.   Pow.    (8th  ed.)  L.  R.  14  Eq.  397;    Mareden,  Perp. 

639.    Marsden,  Perp.  259.    If  there  259,  260;  §§112,  258,  ante. 
is  a  good  appointment  in  fee,  or  '  §§  643  et  seq.,  post. 

absolutely,    and    an    appointment 


POWERS.  441 

§  537.  (5)  The  rules  concerning  gifts  to  classes  are  the 
same  whether  the  gifts  are  direct  or  by  way  of  appointment. 
Therefore  an  appointment  to  a  class  of  persons  some  of  whom 
cannot  take  because  they  do  not  come  within  the  limits  of  the 
Rule  against  Perpetuities  is  bad  altogether.  Gee  v.  Audley.1 
Routledge  v.  Dorril.2  But,  also,  as  in  case  of  a  direct  gift,  an 
appointment  to  a  person  within  the  limits  of  perpetuity  is  not 
rendered  bad  by  being  accompanied  by  an  appointment  to  per- 
sons who  are  not  within  those  limits,  provided  the  amount  of 
the  gift  to  the  former  is  not  affected  by  the  existence  or  non- 
existence  of  the  latter.3 

§  538.  In  the  first  edition  of  Jarman  on  Wills  4  it  was  said : 
"Where  a  power  does  in  terms  authorize  an  appointment  to 
issue  only  who  are  born  within  due  limits,  an  appointment  to 
a  more  extensive  range  of  issue  would  be  good  pro  tanto,  though 
made  to  the  whole  as  a  class;  for,  as  the  issue  who  are  beyond 
the  line  are  also  strangers  to  the  power,  the  instrument 
would  be  simply  nugatory  quoad  the  shares  of  the  remote  ap- 
pointees." Mr.  Lewis 5  favors  this  view,  although  he  points 
out  the  difficulties  attending  it.  But  these  difficulties  seem,  in 
truth,  to  be  insuperable.  How  much  are  the  objects  of  the 
power  to  take?  1.  The  whole  fund?  But  this  is  not  what 
the  appointor  intended,  and  is  not  in  accordance  with  the  anal- 

1  Cited  in  Routledge  v.  Dorril,  Thompson,  [1906]  2  Ch.  199.     See 

2  Ves.  Jr.  357,  365;  sub  nom.  Jee  §  523  c,  ante.     In  re  Coulman,  30 

v.  Audley,  1  Cox,  324.    According  Ch.  D.  186,  §523/,  ante.     Bell  v. 

to  the  statement  in  Cox's  report,  Bell,  13  Ir.  Ch.  517.    In  re  Halli- 

the  limitation  in  Jee  v.  Audley  was  nan's  Trusts,   [1904]  1  I.  R.  452. 

direct,  and  not  by  way  of  appoint-  White  v .  Commissioner  for  Stamps, 

ment  under  a  power.  8  N.  S.  Wales  State  Rep.  287.    In 

1  2  Ves.  Jr.  357.     Lewis,  Perp.  re  Hobson's  Will,  [1907]   Viet.   L. 

493-496.    Sugd.  Pow.  (8th  ed.)  505,  R.   724,   736.     Lewis,    Perp.   494, 

506.    Marsden,  Perp.  254, 255.    See  495.     Sugd.   Pow.    (8th   ed.)   506. 

Harvey  v.  Stracey,  1  Drew.  73,  126,  Marsden,  Perp.  255,  256;  §§  389- 

127;  §§369  e<se$.  395,   ante.     The  case  of  Reed  v. 

1  Griffith    v.  Pownall,   13    Sim.  Mcllvain,  113  Md.  140,   §§  245  g 

393.      Wilkinson    v.    Duncan,    30  et  seq.,  ante,  contra,  seems  incorrect. 
Beav.    111.      Von    Brockdorff    v.  *  P.  250. 

Malcolm,  30  Ch.  D.  172.     In  re          8  Perp.  498  et  seq. 


442  THE   RULE   AGAINST  PERPETUITIES. 

ogy  of  what  happens  when  the  appointment  is  to  persons  not 
objects  of  the  power  but  ascertained  by  name.  In  such  a  case 
the  objects  of  the  power  take  the  shares  given  to  them,  and  the 
shares  given  to  persons  who  are  not  objects  go  in  default  of  ap- 
pointment.1 2.  Shall  they  take  only  their  shares?  But  to 
determine  their  shares  it  will  be  necessary  to  wait  until  it  is  de- 
termined how  many  of  the  appointees  come  into  existence. 
This,  however,  may  not  be  determined  until  too  remote  a  period. 
It  seems,  therefore,  clear,  although  Mr.  Lewis  hesitates  to  reach 
the  conclusion,2  that  when  there  is  a  power  to  appoint  to  those 
of  a  certain  class  who  come  into  existence  within  the  limits  of 
the  Rule  against  Perpetuities,  and  an  appointment  is  made  to 
the  whole  class,  the  entire  gift  is  void,  for  it  is  impossible  until 
a  period  which  may  be  too  remote  to  determine  the  shares  of  the 
true  objects  of  the  power.3  And  accordingly  the  editors  of 
Jarman  have  reversed  his  original  statement.4 

§  539.  Suppose  the  power  is  to  appoint  only  among  those  of 
a  class  who  come  within  the  due  limits,  and  the  appointment 
is  to  the  whole  class,  some  of  whom  may  come  without  the 
limits,  and  after  this  appointment,  but  before  the  interest 
created  by  it  takes  effect,  the  class  is  certainly  reduced  to 
those  who  are  the  proper  objects  of  the  power,  is  the  appoint- 
ment thereby  rendered  good?  For  instance,  suppose  A.  has  a 
power  to  appoint  among  those  of  his  issue  who  are  born  in  his 
lifetime,  and  he  appoints  by  will  to  all  his  grandchildren  when 
the  youngest  reaches  twenty-one.  At  A.'s  death  he  has  chil- 
dren living,  but  before  his  youngest  grandchild  reaches  twenty- 
one  all  his  children  die,  and  none  of  his  grandchildren  are  in 
fact  born  after  his  death.  Mr.  Lewis 5  seems  to  think  this 
would  be  a  good  appointment;  but  this  cannot  be  so.  It  is  to 

1  Sadler   v.  Pratt,  5   Sim.  632.  Harvey  v.   Stracey,    1   Drew.   73, 

Harvey  v.   Stracey,    1   Drew.   73.  130-137;  and  Sugd.  Pow.  (8th  ed.) 

Sugd.  Pow.  (8th  ed.)  507.  607. 

1  And  see  Marsden,  Perp.  254.  *  1  Jarm.  Wills    (3d   ed.)  272; 

1  See  Church  v.  Kemble,  5  Sim.  (4th  ed.)  290;  (5th  ed.)  260;  (6th 

525,  where  this  seems  to  have  been  ed.)  318. 

conceded  to  be  the  law;  and  also  *  Perp.  500. 


POWERS.  443 

a  class  whose  number  at  the  time  of  the  appointment  is  uncer- 
tain, and  may  not  be  ascertained  within  the  prescribed  limits. 

§  540.  In  Stroud  v.  Norman  l  A.  had  a  power  to  appoint 
personalty  among  those  of  her  issue  born  in  her  lifetime,  the 
appointment  to  take  effect  not  more  than  twenty-one  years 
after  her  death.  She  appointed  to  her  daughter  B.,  on  con- 
dition that  if  B.,  when  requested  by  A.  or  her  executors, 
should  not  execute  a  certain  release,  the  property  should  go 
to  the  sons  of  A.,  their  executors,  administrators,  and  assigns. 
Within  two  years  after  the  death  of  A.  her  executors  requested 
B.  to  make  the  release.  It  was  held  by  Wood,  V.  C.,  that  if 
B.  did  not  make  the  release  the  gift  to  the  sons  would  take 
effect.  Here  there  was  a  power  to  make  an  appointment  to 
take  effect  within  a  certain  time,  and  the  appointment  was 
in  fact  made  to  take  effect  on  a  contingency  which  might 
occur  after  the  time.  Putting  the  question  of  remoteness 
aside,  if  the  contingency  should  happen  within  the  required 
time,  the  gift  to  the  sons  would  be  good;  if  it  should  not  happen 
within  that  time,  it  would  be  bad,  because  not  authorized 
by  the  power.  The  validity  of  the  appointment,  apart  from 
the  Rule  against  Perpetuities,  must  be  determined  within 
the  limits  fixed  by  that  Rule;  only  an  appointment  which  came 
within  those  limits  would  be  valid;  and  hence  the  appointment 
did  not  conflict  with  the  Rule.  As  Lord  St.  Leonards  said 
of  Stroud  v.  Norman,  "It  should  seem  that  no  question  upon 
a  perpetuity  could  arise  in  the  case."  2 

§  540  a.  By  a  series  of  English  cases  the  following  doctrine 
has  been  established.  When,  under  a  general  power,  property 
is  appointed  on  trusts  which  do  not  take  effect,  either  because 
the  share  of  a  cestui  gue  trust  has  lapsed,  or  because  no  trusts 
are  declared,  or  because  they  do  not  exhaust  the  fund,  property 
unappointed  goes  as  part  of  the  donee's  property  to  his  re- 
siduary legatees  or  next  of  kin,  and  does  not  pass  under  the 
gift  in  default  of  appointment.  And  the  doctrine  has  been 

1  Kay,  313.  *  Sugd.    Pow.    (8th    ed.)    527, 

note  (e).    Marsden,  Perp.  254. 


444  THE   RULE   AGAINST   PERPETUITIES. 

extended  to  cases  where  the  donee  has  shown  an  intention  to 
make  the  property  under  the  power  a  part  of  his  estate,  as  by 
putting  it  into  a  mass  with  his  own  property.1  In  none  of 
the  cases  has  the  appointment  failed  for  remoteness,  but  it 
would  seem  that  the  doctrine  is  applicable  to  such  cases.2 

5.  Election. 

§  541.  Before  discussing  the  effect  of  the  doctrine  of  elec- 
tion on  remote  appointments,  it  will  be  found  convenient,  and 
indeed  necessary,  to  consider  another  class  of  cases,  where  the 
question  of  election  has  been  raised  in  connection  with  ap- 
pointments in  excess  of  powers.  It  is  settled  law  that  when 
property  is  appointed  by  will  to  persons  who  are  not  objects 
of  the  power,  and  the  testator  gives  objects  of  the  power  leg- 
acies from  his  own  property,  the  latter  take  the  legacies  only 
on  an  implied  condition  that  they  allow  the  appointments  to 
stand.3  "If  under  a  power  to  appoint  to  children  the  donee 
of  the  power  appoints  to  grandchildren,  which  is  bad,  and  the 
children  who  are  entitled  to  claim  by  reason  of  the  badness 
of  the  appointment  also  take  under  the  will  other  property, 
the  grandchildren  are  entitled  to  put  them  to  an  election."  4 
"But  to  this  Rule,"  it  has  been  said,  "so  far  as  regards  ap- 
pointments, a  notable  exception  is  taken,  viz.  that  when  there 
is  an  appointment  to  an  object  of  the  power,  with  directions 
that  the  same  shall  be  settled,  or  upon  any  trust,  or  subject 
to  any  condition,  then  the  appointment  is  held  to  be  a  valid 
appointment,  and  the  superadded  direction,  trust,  or  condition 

1  See    Farwell,    Pow.    (2d    ed.)      gested  to  the  author  by  his  learned 
237-245;   1  Jarm.  Wills   (6th  ed.)      friend,  Charles  Lowell  Barlow,  Esq., 
819;  Theobald,  Wills  (7th  ed.)  243-      of  the  Boston  Bar. 

245;  Lewin,  Trusts  (12th  ed.)  175,  J  Whistler  v.  Webster,  2  Ves. 
and  cases  cited  in  them.  Jr.  367.  Sugd.  Pow.  (8th  ed.)  578 

2  There  do  not  appear  to  be  any      et  seq. 

cases  in  America  where  the  general  *  Per  James,  V.  C.,  in   Wollas- 

doctrine  has  been  passed  upon.  ton  v.  King,  L.  R.  8  Eq.  165,  173, 
This  interesting  question  was  sug-  174. 


POWERS.  445 

is  void,  and  not  only  void,  but  inoperative  to  raise  any  case 
of  election."  1    This  alleged  exception  must  be  examined. 

§  542.  The  series  of  cases  out  of  which  it  has  grown  is  as 
follows:  Carver  v.  Bowks2  (1831).  A  testator,  having  power 
by  his  marriage  settlement  to  appoint  by  will  a  trust  fund  to 
such  one  or  more  of  his  children,  "at  such  time  or  times,  in 
such  shares,  proportions,  manner  and  form,  and  with,  under 
and  subject  to  such  powers,  provisos,  conditions,  restrictions 
and  limitations  over  (such  limitations  over  to  be  for  the  benefit 
of  some  one  or  more  of  such  children  or  his,  her  or  their  issue)" 
as  he  should  choose,  by  will  did  "appoint,  give  and  bequeath" 
the  fund  to  his  five  children  equally  to  be  divided  between 
them;  and  he  declared,  "so  far  as  I  lawfully  or  equitably 
may  or  can,"  that  the  shares  of  the  daughters  should  be  held 
for  themselves  for  life,  without  power  of  anticipation,3  and  on 
their  death  to  their  issue.  The  testator  devised  property 
of  his  own  to  his  children.  It  was  held  that  the  daughters  took 
absolute  interests,  the  grandchildren  not  being  objects  of  the 
power.4  The  question  of  election  having  been  raised,  Sir  John 
Leach,  M.  R.,  is  reported  to  have  "held  that  the  testator 
having  made  an  absolute  appointment  in  the  first  instance, 
no  case  of  election  was  raised."  This  is  the  whole  opinion. 
This  decision  seems  no  exception  to  the  general  rule;  the  tes- 
tator, knowing  that  there  might  be  a  doubt  whether  the  ap- 
pointment was  good,  yet  devised  his  own  property,  without 
showing  any  intention  of  letting  the  operation  of  the  devise 
depend  upon  the  validity  of  the  appointment.  It  does  not 
appear  that  he  thought  he  had  the  power  to  appoint,  neither 
does  it  appear  that  he  meant  to  appoint  although  he  had 
not  the  power;  and  one  of  these  is  necessary  to  raise  a  case 
of  election.8 

1  Wollaston    v.  King,    L.  R.  8      limitations  over  to  the  issue  of  the 
Eq.  174.  children.    The  real  objection  to  the 

2  2  Russ.  &  M.  301.  gift  to  the  grandchildren  was  that 
1  See  §  433,  ante.                               it  was  too  remote,  see  §  425,  ante; 
4  P.  307.    This  was  a  mistake;      but  this  was  apparently  not  noticed. 

the  grandchildren  were  within  the  B  Sugd.  Pow.  (8th  ed.)  581,  582. 

power  under  the  clause  authorizing      Cf.  Blacket  v .  Lamb,  14  Beav.  482, 


446  THE   RULE   AGAINST  PERPETUITIES. 

§  543.  Church  v.  Kemble l  (1832).  Under  a  power  given 
to  A.  to  appoint  to  children  or  issue  born  before  the  appoint- 
ment, A.  appointed  to  her  children,  and,  in  case  she  had  power 
so  to  do,  she  directed  a  daughter's  share  to  be  in  trust  for  her 
life,  and  on  her  death  for  the  daughter's  children  generally. 
Her  own  property  she  gave  to  her  children.  It  was  admitted 
that  this  appointment  to  the  daughter's  children  was  bad,2 
and  Shadwell,  V.  C.,  said: 3  "If  the  testatrix  had  an  absolute, 
unconditional  intention  to  give  what  she  could  not,  then  a 
case  of  election  would  arise;"  but  he  held  "that  she  only  meant 
to  appoint  the  property  in  a  given  manner,  provided  she  had  the 
power  so  to  do,"  4  and  that  therefore  there  was  no  election.5 

§  544.  Kampf  v.  Jones 6  (1837).  Under  a  power  to  appoint 
to  issue,  A.  appointed  to  his  child,  and  directed  that  the  prop- 
erty should  be  retained  by  trustees,  and  the  income  paid  to  the 
child  for  life,  with  limitations  over  on  its  death  to  its  issue. 
These  latter  limitations  were  too  remote.  Held,  that  the  child 
took  absolutely.7  The  residue  of  the  testator's  personalty  was 
given  to  the  children,  but  "the  general  assets  of  the  testatrix 
were  insufficient  to  pay  her  debts  and  the  other  legacies  given 
by  her  will,"  8  so  that  no  question  of  election  could  arise.  This 
circumstance  seems  to  have  been  sometimes  overlooked. 

§  545.  Blacket  v.  Lamb  9  (1851).  Under  a  power  to  appoint 
to  children,  A.  appointed  to  his  children,  and  added:  "I  es- 
pecially request  each  of  my  six  children  will  not  sink  into  or 
spend  their  respective  shares  thereof,  but  leave  them  for  the 
benefit  of  their  respective  children;  and  if  any  of  them  has  no 
children,  then  to  leave  the  same,  so  that  their  shares  may  go 
in  the  same  way  as  my  general  estate  and  effects  are  hereby 
limited,"  which  was  to  the  children  for  life,  with  remainders 


488-490,  §  545,  post;  Stephens  v. 
Gadsden,  20  Beav.  463,  §  547,  post; 
King  v.  King,  15  Ir.  Ch.  479,  §  550, 
post. 

1  5  Sim.  525. 


See  §§  423,  425,  ante. 
5  Sim.  525,  529. 


P.  530. 

Sugd.  Pow.  (8th  ed.)  578. 

2  Keen,  756. 

See  §  426,  ante. 

See  2  Keen,  759. 

14  Beav.  482. 


POWERS.  447 

over.  Held,  that  the  children  were  not  put  to  their  election. 
Here  again  it  appeared  that  the  testator  neither  thought  he 
could  appoint,  nor  meant  to  appoint  although  he  could  not,  but 
that  he  knew  he  could  not  appoint,  and  therefore  did  not  ap- 
point, but  only  requested  his  appointees  to  do  what  he  knew  he 
could  not  do  himself,  and  what  he  himself  did  not  try  to  do.1 

§  546.  Moriarty  v.  Martin2  (1852).  Under  a  power  to  ap- 
point to  children,  A.  by  will  appointed  a  fund  of  money  to  his 
son,  and  requested  him  to  invest  it  in  land  or  mortgage  to  the 
use  of  himself  for  life,  remainder  to  his  children.  A.  also  be- 
queathed property  of  his  own  to  the  son.  Blackburne,  C.,  held 
that  a  case  of  election  was  raised  in  favor  of  the  son's  children. 
The  Lord  Chancellor  evidently  disapproved  of  Blacket  v.  Lamb. 
The  decision  in  this  case,  however,  seems  questionable.  It 
would  appear  as  if  the  testator  knew  he  could  not  appoint  to 
his  grandchildren,  and  therefore  did  not  mean  to  appoint  to 
them,  and  so  that  there  was  no  case  for  election.8 

§547.  Stephens  v.  Gadsden*  (1855).  Under  a  power  in  a 
marriage  settlement  to  appoint  to  issue,  a  testator  appointed  to 
his  children,  subject  to  certain  trusts,  which  were  to  them  for 
life,  and  on  their  deaths  over  to  their  children.  He  gave  his 
own  estate  on  the  same  trusts.  Sir  John  Romilly,  M.  R.,  held 
that  the  case  was  governed  by  Carver  v.  Bowks  and  his  own 
decision  in  Blacket  v.  Lamb,  and  that  the  children  took  free 
from  the  trusts.  It  is  not  expressly  stated  that  the  children 
were  not  put  to  their  election,  but  as  the  opinion  says  nothing 
about  it  they  probably  were  not.  Here  certainly  is  a  case 
where  the  testator  appointed,  and  meant  to  appoint,  an  equi- 
table interest  to  persons  who  could  not  take  it,  because  the  gift 
to  them  was  too  remote. 

§  548.   Woolridge  v.  Woolridge 5  (1859).     Under  a  power  hi 

1  See  Sugd.  Pow.  (8th  ed.)  581,      post;  King  v.  King,  15  IT.  Ch.  479, 
582;  Stephens  v.  Gadsden,  20  Beav.       §  550,  post. 
463,  §  547,  post;  Moriarty  v.  Mar-  *  3  Ir.  Ch.  26. 

tin,  3  Ir.  Ch.  26,  §  546,  post;  Tom-  »  See  Sugd.  Pow.  (8th  ed.)  582. 

kyns  v.  Blane,  28  Beav.  422,  §  549,  *  20  Beav.  463. 

•  Johns.  63. 


448  THE   RULE   AGAINST  PERPETUITIES. 

a  marriage  settlement  to  appoint  to  children,  a  testatrix  ap- 
pointed to  her  children,  and  by  codicil  directed  that  the  share 
of  a  daughter  should  be  enjoyed  by  her  for  life,  and  on  her 
death  go  to  the  daughter's  children.  The  children  of  the  testa- 
trix took  an  interest  in  her  own  property.  Wood,  V.  C.,  ruled 
that  the  daughter  took  an  absolute  interest  in  the  appointed 
property,  and  that  no  case  of  election  was  raised.  He  said  that 
the  principle  of  Carver  v.  Bowles  l  appeared  to  have  been  that 
"Where  there  is  an  absolute  appointment  by  will  in  favor  of  a 
proper  object  of  the  power,  and  that  appointment  is  followed 
by  attempts  to  modify  the  interest  so  appointed  in  a  manner 
which  the  law  will  not  allow,  the  Court  reads  the  will  as  if  all 
the  passages  in  which  such  attempts  are  made  were  swept  out 
of  it,  for  all  intents  and  purposes;  i.  e.  not  only  so  far  as  they 
attempt  to  regulate  the  quantum  of  interest  to  be  enjoyed  by 
the  appointee  in  the  settled  property,  but  also  so  far  as  they 
might  otherwise  have  been  relied  upon  as  raising  a  case  of 
election."  2 

§549.  Tomkyns  v.  Blane3  (1860).  A  marriage  settlement 
gave  a  power  to  A.  to  appoint  to  his  issue,  with  a  gift,  in  de- 
fault of  appointment,  to  A.'s  children.  A.  by  will  appointed  to 
his  children,  to  vest  in  them  with  the  same  limitations  over 
for  the  benefit  of  them  or  their  children,  and  upon  such  con- 
ditions and  in  such  manner  in  all  respects  as  was  declared  con- 
cerning his  residuary  estate.  Among  the  gifts  of  the  residuary 
estate  were  some  to  persons  not  objects  of  the  power.  Sir  John 
Romilly,  M.  R.,  held  that  a  case  of  election  was  raised.  He 
distinguished  the  case  from  Carver  v.  Bowles  and  Blacket  v. 
Lamb,  on  the  ground  that  in  those  cases  there  was  a  separate 
distinct  appointment  to  the  children  and  a  subsequent  modi- 
fication, while  in  Tomkyns  v.  Blane  there  were  direct  appoint- 
ments in  favor  of  persons  not  objects  of  the  power,  and  the 
interests  appointed  to  those  persons  went  in  default  of  appoint- 

1  §  542,  ante.  »  28  Beav.  422. 

1  Johns.  69.    See  King  v.  King, 
§  550,  post. 


POWERS.  449 

ment,  and  it  was  the  one  taking  in  default  of  appointment  who 
was  put  to  his  election. 

§  550.  King  v.  King  l  (1864).  Under  a  power  to  appoint  to 
children,  A.  by  will  appointed  to  his  children,  and  directed 
that  their  shares  should  be  settled  on  them  for  life,  and  on  their 
death  to  their  children.  A.  also  gave  the  children  legacies,  and 
directed  that  they  should  be  settled  on  the  same  trusts.  The 
will  contained  a  proviso  that  if  the  shares  appointed  and  lega- 
cies were  not  so  settled,  they  should  be  forfeited.  Brady,  L.  C., 
held  that  by  the  clause  of  forfeiture  the  children  were  put 
to  their  election,  although  had  it  not  been  for  that  clause  he 
would  have  agreed  with  Blacket  v.  Lamb  and  Woolridge  v. 
Woolridge. 

§  551.  Churchill  v.  Churchill 2  (1867).  Under  a  power  to  ap- 
point to  children,  A.  by  will  appointed  to  his  daughters,  and 
directed  that  the  share  of  each  daughter  should  be  held  in 
trust  for  her  for  life,  and  on  her  death  to  go  to  her  children.  A.'s 
children  took  interests  in  the  residue  of  his  estate.  Sir  John 
Romilly,  M.  R.,  following  Woolridge  v.  Woolridge  and  the  other 
cases,  held  that  there  was  no  case  for  election. 

§552.  White  v.  White 3  (1882).  A.'s  marriage  settlement 
gave  him  a  power  to  appoint  to  the  issue  of  the  marriage,  with 
a  gift,  in  default  of  appointment,  to  the  children  of  the  marriage. 
A.  appointed  to  a  child  of  the  marriage,  subject  to  a  charge  in 
favor  of  persons  not  objects  of  the  power.  And  A.  devised 
property  of  his  own  to  such  child  subject  to  the  same  charges. 
Fry,  J.,  held  that  the  child  took  only  the  fund  less  the  charges, 
that  the  amount  of  the  charges  went  in  default  of  appointment, 
and  that  the  child  taking  in  default  of  appointment  was  put  to 
his  election.  He  distinguished  Carver  v.  Bowles  and  Woolridge  v. 
Woolridge  on  the  ground  that  in  those  cases  the  testator  had 
directed  "that  certain  property  which  he  had  in  the  first  place 
appointed  absolutely  to  an  object  of  the  power,  should  be 
held  upon  trusts  or  subject  to  conditions  in  favor  of  persons  who 

1  15  Ir.  Ch.  479.  »  22  Ch.  D.  555. 

1  L.  R.  5Eq.44. 


450  THE  RULE  AGAINST  PERPETUITIES. 

were  not  objects  of  the  power,  but  who  would  probably  be 
objects  of  any  settlement  or  provision  which  might  be  made  by 
the  appointee;"  whereas  in  the  case  before  him  the  charge  was 
not  "such  a  disposition  of  the  gift  to"  the  child  "as  according 
to  the  ordinary  course  of  family  arrangements  in  this  country 
he  would  be  likely  to  make."  1 

§  552  a.  King  v.  King2  (1884).  A.  having  a  testamentary 
power  to  appoint  land  to  his  issue,  by  will  appointed  it  to 
his  son  charged  with  £2,000,  and  directed  that  the  £2,000, 
together  with  certain  other  portions  of  his  estate,  should  form 
a  fund  for  the  payment  of  debts  and  legacies.  Chatterton,  V.  C., 
held  that  the  son  only  took  the  fund  less  the  £2,000,  that  the 
£2,000  went  in  default  of  appointment,  and  that  those  taking 
in  default  of  appointment  were  put  to  their  election. 

§  552  6.  The  difference  between  Carver  v.  Bowks,  Church  v. 
Kemble,  Kampf  v.  Jones,  Blacket  v.  Lamb,  Moriarty  v.  Martin, 
Stephens  v.  Gadsden,  Woolridge  v.  Woolridge,  King  v.  King 
(15  Ir.  Ch.  479),  and  Churchill  v.  Churchill,  on  the  one  hand, 
and  Tomkyns  v.  Blane,  White  v.  White,  and  King  v.  King  (13 
L.  R.  Ir.  531),  on  the  other,  is  that  in  the  former,  the  effect  of 
rejecting  the  modifications  which  were  outside  of  the  power, 
as  too  remote,  was  not  to  let  in  those  persons  entitled  in  de- 
fault of  appointment,  but  to  give  the  original  appointees  the  en- 
tire interest,  while  in  the  latter,  the  good  appointments  did 
not  cover  the  whole  interest,  and  the  portion  not  properly  ap- 
pointed went  in  default.  In  the  former  cases,  the  question  was 
whether  the  appointees  should  be  put  to  their  election,  and 
(except  in  Moriarty  v.  Martin)  it  was  held  that  they  were 
not;  and  in  the  latter  the  question  was  whether  those  taking 
in  default  of  appointment  should  be  put  to  their  election,  and 
it  was  held  that  they  were.8 

§  553.  The  foregoing  series  of  cases,  especially  Woolridge  v. 
Woolridge  and  Churchill  v.  Churchill,4  although  none  of  them 

1  See  also  Wallinger  v.  Wallin-  »  See  Farwell,  Pow.  (2d  ed.) 
ger,  L.  R.  9  Eq.  301.  377,  378. 

»  13  L.  R.  Ir.  631.  «  §§  548,  551,  ante. 


POWERS.  451 

have  been  decided  in  the  Court  of  Appeal,1  may  very  proba- 
bly have  settled  the  law  for  England  to  be  that  if  an  appoint- 
ment to  A.,  the  object  of  a  power,  is  followed  by  a  direction 
that  the  appointed  property  shall  be  settled  on  A.  for  life, 
with  a  limitation  over  to  A.'s  issue,  who  are  not  objects  of  the 
power,  A.  takes  the  absolute  interest,  and  no  case  of  election 
is  raised. 

§  554.  But  certainly  where  this  doctrine  has  not  been  set- 
tled it  ought  not  to  be  received  without  careful  consideration. 

§  555.  It  may  be  said  that  when  the  direction  to  settle  upon 
persons  not  objects  of  a  power  can  be  separated  from  the  ap- 
pointment to  an  object  of  the  power,  the  former  should  be 
disregarded,  and  the  latter  stand,  ut  res  magis  valeat  quam 
pereat;  and  that  as  the  modification  would  be  disregarded 
when  necessary  to  effect  this  purpose,  it  should  be  disregarded 
for  every  other.  But  this  last  does  not  seem  a  necessary  con- 
sequence. It  may  be  well  to  disregard  the  modification  if  it 
cannot  be  sustained  as  a  whole,  and  if  to  sustain  it  in  part 
would  less  effectuate  the  testator's  intention  than  to  disregard 
it  altogether;  but  if  by  reason  of  the  doctrine  of  election  the 
modification  can  be  sustained,  there  seems  no  good  reason, 
why  it  should  not  be.  And  such  appears  to  have  been  the 
opinion  of  Lord  St.  Leonards.2 

§  556.  We  now  come  to  the  question  of  election  as  bearing 
upon  an  appointment  which  is  bad,  not  because  the  appointee 
is  outside  of  the  power,  but  because  the  appointment  is  too 
remote.  The  question  arose  in  Carver  v.  Bowles,  although  it 
was  not  noticed,3  and  it  was  probably  decided  in  Stephens  v. 
Gadsden; 4  and  in  several  of  the  cases  the  appointments  hi 
excess  of  the  power  would  have  been  too  remote  had  they 
been  within  the  power;  but  Wollaston  v.  King 6  is  the  chief 
English  authority  upon  the  point. 

1  See,  however,  Roach  v.  Wood,  4  §  547,  ante. 

3  Ch.  D.  429,  444.  •  L.  R.  8  Eq.  165.     See  In  re 

1  Sugd.  Pow.  (8th  ed.)  581,  582.  Abbott,  [1893J   1  Ch.  54,  59.     Cf. 

*  See  §  542,  note,  ante.  §§  526  et  seq.,  ante. 


452  THE   RULE   AGAINST  PERPETUITIES. 

§  557.  In  Wollaston  v.  King,  A.,  under  a  power  in  her 
marriage  settlement  to  appoint  to  children,  appointed  part  of 
the  fund  to  her  son  for  life,  remainder  as  he  should  by  will 
appoint,  and,  after  other  appointments,  appointed  the  residue 
of  the  fund  to  her  daughters,  to  whom  she  also  gave  interests 
in  her  own  property.  James,  V.  C.,  held  that  the  appoint- 
ment to  the  son's  appointees  being  void,  the  daughters  took 
under  the  residuary  gift,  and  that  there  was  no  case  for  an 
election. 

§  558.  The  Vice-Chancellor  having  stated  the  rule  as  to 
election,  and  what  he  calls  the  "notable  exception,"  above 
discussed,1  and  having  mentioned  that  this  exception  was  not 
followed  in  the  case  of  Moriarty  v.  Martin,2  which  is  said  to 
have  received  the  approval  of  Lord  St.  Leonards,  adds:  "Not- 
withstanding that  case  and  that  approval,  I  feel  bound  by  the 
current  of  the  English  authorities."  He  goes  on  to  say  that 
he  has  endeavored  to  extract  from  the  English  cases  on  which 
this  exception  has  been  based  a  principle  which  he  can  apply 
to  the  case  before  him,  and  truly  remarks  that  the  rule  laid 
down  in  Whistler  v.  Webster3  (and  which  has  been  so  often 
quoted  with  approval  as  the  ground  of  the  doctrine  of  elec- 
tion), "that  no  man  shall  claim  any  benefit  under  a  will  with- 
out conforming,  so  far  as  he  is  able,  and  giving  effect  to  every- 
thing contained  in  it  whereby  any  disposition  is  made  showing 
an  intention  that  such  a  thing  shall  take  place,"  was  not 
applied  in  the  cases  forming  that  exception;  and  he  con- 
cludes that  the  only  intelligible  principle  which  can  be  deduced 
from  those  cases  is  that  "the  rule  as  to  election  is  to  be  ap- 
plied as  between  a  gift  under  a  will  and  a  claim  dehors  the 
will,  and  adverse  to  it,  and  is  not  to  be  applied  as  between 
one  clause  in  a  will  and  another  clause  in  the  same  will;" 
and  that  on  this  principle  there  is  no  ground  for  election  in 
the  case  before  him. 

§  558  a.  But  although  such  a  claim  may  be  said  to  be  under 

1  His  language  is  cited   §  541,          *  3  Ir.  Ch.  26;  §  546,  ante, 
ante.  »  2  Ves.  Jr.  367. 


POWERS.  453 

another  clause  of  the  same  will,  yet  the  appointee  really  claims 
under  the  instrument  creating  the  power.  Suppose  A.  having 
a  power  to  appoint  by  will  among  his  children,  appoints  by 
will  to  his  children,  directs  that  the  share  of  each  shall  be 
settled  on  it  for  life  with  remainder  to  its  issue,  and  gives 
his  own  property  to  his  children.  Here  the  modification  is 
rejected  and  the  children  take  absolute  interests  in  the  ap- 
pointed property,  and  the  reason  why  they  take  absolute  in- 
terests is  that  they  take  what  is  really  a  gift  from  the  creator 
of  the  power,  and  the  direction  in  the  will  for  the  settlement 
of  the  property  fails,  because  the  terms  of  the  gift  do  not 
allow  it. 

§  559.  But  further,  though  it  may  be  true  that  the  only 
principle  deducible  from  Woolridge  v.  Woolridge  and  the  like 
cases  is  the  one  drawn  by  the  learned  Vice-Chancellor,  and 
that  the  application  of  it  to  the  case  before  him  required  the 
decision  which  he  made,  yet  in  a  jurisdiction  where  the  courts 
are  not  bound  by  the  authority  of  those  cases,  the  fact  that 
they  go  upon  this  principle  is  rather  a  reason  for  not  following 
them.  For  while  the  rule  laid  down  in  Whistler  v.  Webster 
is  founded  on  a  very  broad  and  intelligible  equity,  this  sup- 
posed principle  is  highly  technical  and  arbitrary.  It  is  a  prin- 
ciple which  does  not  seem  to  have  occurred  to  the  judges  who 
decided  the  earlier  cases,  but  which  has  been  subsequently 
invented  as  a  ground  for  supporting  them. 

§  560.  Two  additional  reasons  are  given  by  the  learned 
Vice-Chancellor  for  reaching  his  conclusion.  First.  The  son 
was  insolvent,  and  had  his  exercise  of  the  power  been  good, 
the  fund  appointed  would,  on  the  familiar  principle  of  Toum- 
shend  v.  Windham,1  have  gone  to  his  creditors.  Suppose  now 
that  in  this  case  the  son's  appointees  were  entitled  to  be 
compensated  out  of  A.'s  other  property,  could  the  creditors 
have  stepped  into  their  place?  The  complication  of  this 
question,  and  the  difficulty  of  deciding  it,  seemed  to  the  learned 
Vice-Chancellor  a  reason  for  not  raising  an  election  at  all. 

1  2  Ves.  Sr.  1. 


454  THE   BULB   AGAINST  PERPETUITIES. 

The  question  is  a  nice  one,  but  it  is  submitted  that  the  creditors 
would  be  entitled.  The  son's  appointees  would,  by  virtue  of 
the  appointment,  be  entitled  to  compensation  out  of  A.'s  prop- 
erty, and  all  property  going  to  any  person  by  virtue  of  the  son's 
general  appointment  could  be  taken  for  the  son's  debts. 

§561.  Second.  "It  is  material  that  the  reason  why  the 
gift  fails  is  that  there  was  an  attempt  to  create  a  power  in 
violation  of  the  rules  of  law.  I  apprehend  that  it  is  not  for 
this  Court  to  aid  such  an  attempt,  either  by  the  application 
of  the  doctrine  of  election  or  otherwise."  This  seems  more 
specious  than  sound.  The  law  does  not  refuse  to  allow  re- 
mote estates  any  more  stringently  than  it  refuses  to  allow 
one  man  to  give  away  another  man's  property.  Yet  it  is  in 
aid  of  attempts  to  give  away  other  people's  property  that  the 
doctrine  of  election  has  its  usual  application.  In  this  class  of 
cases  the  application  of  the  doctrine  of  election  makes  the 
testator  say  to  the  appointee,  "If  you  will  settle  this  appointed 
property  on  A.,  as  you  lawfully  may,  I  will  give  you  a  legacy, 
but  if  you  will  not,  then  I  will  give  the  legacy,  as  I  lawfully 
may,  to  A.;"  and  in  this  there  seems  nothing  illegal  and  noth- 
ing to  which  the  law  should  refuse  its  aid.1 

§  561  a.  In  Wollaston  v.  King  the  question  was  whether 
appointees  under  a  will  were  put  to  their  election.  It  was  held 
that  they  were  not,  because  they  claimed  under  the  will,  not 
dehors  the  will.  This  reason  may  not  be  worth  much  as  one 
on  which  to  ground  an  exception  to  the  general  doctrine  of 
election,  but  it  was  all  that  the  learned  Vice-Chancellor  could 
find;  even  this  ground,  however,  fails  to  support  two  late  de- 
cisions, one  in  England,  another  in  Ireland. 

§  561  6.  In  re  Warren's  Trusts.2  Here  A.,  under  a  power  in 
her  marriage  settlement  to  appoint  personal  property  to  issue, 
appointed  to  a  son  for  life,  and  on  his  death  to  those  of  his 
children  who  should  reach  twenty-one.  This  appointment  to 
the  son's  children  was  too  remote.  The  Court  held  that  the 
persons  who  took  in  default  of  appointment,  and  had  also  lega- 
>  Cf.  §§  528,  529,  ante.  •  26  Ch.  D.  208. 


POWERS.  455 

cies  given  to  them  by  A.  out  of  her  own  property  were  not  put 
to  their  election.  Yet  those  persons  took  not  under  but  dehors 
the  will.  Pearson,  J.,  said: l  "How  can  there  be  any  question 
of  election?  I  must  read  the  will  as  if  the  invalid  appoint- 
ment were  not  in  it  at  all.  The  ordinary  case  of  election  is 
when  a  testator  attempts  to  give  by  his  will  property  which 
belongs  to  some  one  else.  Such  a  gift  is  not  ex  fade  void.  In 
the  present  case  it  is  the  law  which  disappoints  the  appointee. 
The  gift  is  void  ex  facie."  When  A.'s  property  is  bequeathed  by 
a  testator  to  B.,  and  B.  is  "disappointed"  in  getting  it,  it  is  the 
law  that  "disappoints"  him  in  refusing  him  the  right  to  take 
another  man's  property,  just  as  much  as  the  law  "disappoints" 
him  in  refusing  to  let  him  take  a  remote  interest.2 

§  561  c.  In  re  Handcock's  Trusts.3  In  this  case  A.  under  a 
power  in  his  marriage  settlement  to  appoint  personal  property 
to  issue,  appointed  by  his  will  to  his  children  and  the  survivor  of 
them  for  their  lives  and  life,  and  on  the  death  of  the  survivor 
to  divide  the  principal  among  all  such  of  his  grandsons  as  should 
reach  twenty-one  and  all  his  granddaughters  who  should  reach 
that  age  or  marry.  The  appointment  to  the  grandchildren  was 
bad  for  remoteness.  The  Court  of  Appeal  in  Ireland  (reversing 
the  decree  of  Chatterton,  V.  C.)  held  that  the  persons  who  took 
on  default  of  appointment,  and  had  also  legacies  given  to  them 
by  A.  out  of  his  own  property,  were  not  put  to  their  election. 

§  561  d.  It  is  submitted  that  In  re  Warren's  Trusts  and 
In  re  Handcock's  Trusts  cannot  be  supported,  even  if  the 
exception  recognized  in  Wollaston  v.  King  is  to  be  maintained. 
In  Albert  v.  Albert,4  under  a  power  given  to  A.  to  appoint 

1  Id.  219.  to  be  dealt  with  as  if  inserted  in 

1  See  §  561,  ante.    The  appoint-  the  settlement.    It  would  be  quite 

ment  is  not  bad  ex  facie  of  the  will.  good  as  a  dealing  with  a  testator's 

"The   invalidity   of   the   appoint-  own  property."    Price,  arguendo  in 

ment    to    grandchildren    does    not  In  re  Handcock's  Trusts,  23  L.  R. 

appear  on  the  will  itself;  you  must  Ir.  34,  44. 
look  to  another  instrument  to  dis-  *  23  L.  R.  Ir.  34. 

cover  it.     The  benefit   attempted  4  68  Md.  352;  and  see  Graham 

to  be  given  to  grandchildren  by  the  v.   Whitridge,    99    Md.    248.    The 

will  is  remote  only  because  it  has  decision  in  this  last  case  that  the 


456 


THE    RULE   AGAINST   PERPETUITIES. 


by  will  to  his  "heirs"  (which  the  court  construed  to  mean 
"children")  either  in  trust  or  absolutely,  an  appointment 
to  grandchildren  was  held  bad  for  remoteness,  and  the  prop- 
erty went  in  default  of  appointment.  The  persons  taking  in 
default  of  appointment,  who  also  had  legacies  under  A.'s  will 
out  of  his  own  property,  were  put  to  their  election.  The  Mary- 
land decision  seems  preferable  to  those  of  the  English  and 
Irish  Courts. 

§  561  e.  And  by  a  late  English  case  not  only  have  the 
opinions  in  In  re  Warren's  Trusts,  and  In  re  Handcock's  Trusts, 
but  also  the  dictum  of  Pearson,  J.  (cited  §  561,  ante),  been  dis- 
approved. In  Bradshaw  v.  Bradshaw1  Kekewich,  J.,  held  that 
when  an  appointment  failed  because  too  remote,  those  who 
took  in  default  of  appointment  were  put  to  their  election.2 


doctrine  of  election  is  not  to  be 
applied  when  the  testatrix  has  ap- 
pointed the  property  over  which 
she  has  a  power  by  one  clause  of 
her  will,  and  devised  her  own  prop- 
erty by  another  clause  of  the  same 
will,  follows  Wollaston  v.  King,  as 
to  which  see  §§  557  et  seq.,  ante. 

1  [1902]  1  Ch.  436. 

2  The   opinion    of    the  learned 
judge  puts  the  matter  so  well,  that 
a  considerable  extract  from  it  is 
here  given.     "If  the  doctrine  of 
election   applies,    it   compels  them 
to  make  good  out  of  what  they 
take  the   interests  which   are  de- 
feated by  their  insisting,  as  they 
do,   upon   the   appointment   being 
void  for  remoteness.    I  do  not  my- 
self see  what  the  difference  in  prin- 
ciple is  between  an   appointment 
becoming  void  for  that  reason,  and 
an   appointment,   such  as   is  men- 
tioned  by    Kay,    J.,    referring    to 
Whistler  v.  Webster,  2  Ves.  Jr.  367, 
2  R.  R.  260,  to  persons  who  are 
not  objects  of  the  power.    Whether 
the   appointment   fails   because   it 


offends  against  some  rule  of  law,  or 
whether  it  fails  because  it  offends 
against  the  rule  of  construction 
of  the  will,  which  is  that  the  donee 
may  appoint  to  certain  persons 
and  no  others,  seems  to  me,  with 
all  deference  to  those  who  enter- 
tain a  contrary  opinion,  not  to 
matter  one  jot.  In  either  case  it 
fails,  and  on  its  failing  the  prop- 
erty goes  to  those  who  take  in  de- 
fault of  appointment.  But  it  has 
seemed  otherwise  to  other  judges, 
and  I  have  to  determine  whether 
I  can  properly  follow  those  other 
judges.  If  I  had  a  direct  expres- 
sion of  opinion  by  a  judge,  or  still 
more  by  the  Court  of  Appeal,  I 
should  be  bound  to  follow  it  and 
leave  it  to  some  higher  tribunal  to 
set  me  right.  But  I  am  by  no 
means  sure  that  there  is  any  such 
expression.  The  point  is  noticed 
by  James,  V.  C.,  whose  dictum  on 
a  question  of  equity  is,  I  need  not 
say,  entitled  to  the  highest  respect, 
in  Wollaston  v.  King,  L.  R.  8  Eq. 
165.  But  certainly  this  is  no  more 


POWERS. 


457 


§561/.  But,  in  In  re  Oliver's  Settlement1  Farwell,  J.,  dis- 
approved of  Bradshaw  v.  Bradshaw.    He  said  that  "the  whole 


than  a  dictum.  The  question  he 
had  to  decide,  which  did  not  at  all 
raise  the  question  which  is  to  be 
decided  in  this  case,  is  accurately 
stated  in  the  third  paragraph  of 
the  headnote:  'Held,  also,  that  the 
rule  as  to  election  was  applicable 
only  as  between  a  gift  under  a  will 
and  a  claim  dehors  the  will  and  ad- 
verse to  it,  and  not  as  between  one 
clause  in  a  will  and  another  clause 
in  the  same  will,  and  that  there- 
fore the  daughters  were  not  put  to 
their  election.'  That  was  the  point 
he  had  to  decide.  But  there  was 
likewise  an  appointment  void  for 
remoteness,  and  it  was  held  that 
the  appointed  property  went  over 
to  the  persons  claiming  in  default 
of  appointment,  and  James,  V.  C., 
said,  L.  R.  8  Eq.  175,  'It  is  also 
material  that  the  reason  why  the 
gift  fails  is  that  there  was  an 
attempt  to  create  a  power  in  vio- 
lation of  the  rules  of  law;'  and  then 
he  adds:  'I  apprehend  that  it  is 
not  for  this  court  to  aid  such  an 
attempt,  either  by  the  application 
of  the  doctrine  of  election  or  other- 
wise.' That  is  not  a  decision.  It 
is  an  observation  made  in  reference 
to  a  point  which  was  not  before  the 
Vice-Chancellor,  and  I  do  not  think 
I  can  regard  it  as  binding.  The 
only  other  case  in  which  the  point 
has  been  dealt  with  is  In  re  War- 
ren's Trusts,  26  Ch.  D.  208.  There 
Pearson,  J.,  really  had  not  the  point 
directly  before  him  in  the  general 
discussion  of  the  case.  When  he 
came  to  the  end,  there  was  appar- 
ently a  point  raised  by  Mr.  Everitt, 


who  referred  to  Wollaston  v.  King, 
L.  R.  8  Eq.  165,  and  Pearson,  J., 
said  this,  26  Ch.  D.  219:  'How  can 
there  be  any  question  of  election? 
I  must  read  the  will  as  if  the  in- 
valid appointment  were  not  in  it 
at  all.  The  ordinary  case  of  elec- 
tion is  when  a  testator  attempts 
to  give  by  his  will  property  which 
belongs  to  some  one  else.  Such  a 
gift  is  not  ex  fade  void.  In  the 
present  case  it  is  the  law  which 
disappoints  the  appointee.  The 
gift  is  void  ex  fade.'  He  says  that 
election  does  not  apply  to  this  case 
because  he  has  not  got  in  the  will 
that  which  raises  it,  and  he  says 
he  has  not  got  that  because  the  gift 
being  ex  fade  void  he  is  bound  to 
read  the  will  as  if  it  were  not  there. 
With  great  respect  to  the  learned 
judge,  I  cannot  help  thinking  there 
is  a  slip  in  his  conclusion.  You 
cannot  say,  as  it  seems  to  me,  that 
the  gift  is  not  in  the  will.  The  gift 
is  in  the  will,  and  is  void,  and  be- 
cause it  is  void  the  case  of  election 
arises;  and  if  I  am  right  in  saying 
that  there  is  no  substantial  distinc- 
tion between  an  appointment  to  a 
person  not  an  object  of  the  power 
and  an  appointment  to  a  person 
who  cannot  take  because  of  the  law 
against  perpetuities,  then  the  doc- 
trine of  election  must  be  applied. 
There  was  a  case  in  Ireland  of  In  re 
Handcock's  Trusts,  23  L.  R.  Ir.  34, 
which  is  entitled  to  the  greatest  re- 
spect, distinctly  following  what  was 
supposed  to  have  been  held  by 
Pearson,  J.,  in  In  re  Warren's 
Trusts,  26  Ch.  D.  208,  and  by 


[1905]  1  Ch.  191. 


458  THE   RULE   AGAINST  PERPETUITIES. 

foundation"  of  Kekewich,  J.'s,  judgment  is  "that  it  is  im- 
material whether  the  appointment  fails  for  illegality  or  merely 
on  a  point  of  construction."  Mr.  Justice  Kekewich,  it  must 
be  admitted,  laid  himself  open  to  this  remark.  He  said  that 
he  saw  no  difference  between  an  appointment  void  for  remote- 
ness and  an  appointment  to  persons  who  are  not  objects  of  the 
power.  "Whether  the  appointment  fails  because  it  offends 
against  some  rule  of  law,  or  whether  it  fails  because  it  offends 
against  the  rule  of  construction  of  the  will,  which  is  that  the 
donee  may  appoint  to  certain  persons  and  no  others."  The 
expression  was  not  fortunate.  In  truth,  there  is  no  question 
of  construction.  Take  a  common,  perhaps  the  most  common, 
case  of  election.  A.,  having  a  power  to  appoint  a  fund  to 
children,  to  whom,  in  default  of  appointment,  the  fund  goes, 
appoints  to  grandchildren,  and  leaves  legacies  out  of  his  own 
property  to  his  children.  There  is  no  question  of  construction; 
there  is  no  dispute  as  to  what  persons  are  objects  of  the  power, 
nor  that  the  appointees  are  not  such  persons.  What  the 
doctrine  of  election  says  to  the  children  is,  unless  you  will  give 
your  property,  as  you  lawfully  may,  to  the  grandchildren,  you 
shall  not  have  your  legacies.  How  does  this  differ  from  a 
case  where  it  is  said  to  the  children,  unless  you  settle  your 
property  upon  the  grandchildren,  as  you  lawfully  may,  you 
shall  not  have  your  legacies?  As  is  said,  §561,  ante,  "The 
law  does  not  refuse  to  allow  remote  estates  any  more  strin- 
gently than  it  refuses  to  allow  one  man  to  give  away  another 
man's  property.  Yet  it  is  in  attempts  to  give  away  other 
people's  property  that  the  doctrine  of  election  has  its  usual 
application."  In  re  Oliver's  Settlement  was  followed  by  War- 
rington,  J.,  in  In  re  Beales'  Settlement,1  but,  notwithstanding, 

James,  V.  C.,  in  Wollaston  v.  King,  of  an  appointment  to  a  person  not 

L.  R.  8  Eq.  165,  and  yet  it  is  my  an  object  of  the  power,  a  case  of 

duty  not  to  bind  myself  by  an  au-  election  is  raised,  so  in  the  case  of 

thority  which  is  not  binding,  if  I  an  appointment  such  as  this  which 

cannot   reconcile   it   with   what   I  is  void  for  remoteness,  a  case  of 

conceive  to  be  the  doctrine  of  the  election  is  raised." 
Court.    I  think  that,  as  in  the  case  »  [1905]  1  Ch.  256. 


POWERS.  459 

it  is  submitted  to  the  learned  reader  that  Bradshaw  v.  Bradshaw 
is  the  better  law. 

§  561  g.  In  re  Oliver's  Settlement  has  now  been  followed  by  In 
re  Wright,1  and  In  re  Noshf  affirmed  by  the  Court  of  Appeal.8 
These  cases  have  probably  settled  the  law  in  England.  They 
add  nothing  to  the  reasoning  of  Farwell,  J.,  in  In  re  Oliver's 
Settlement;  and  in  spite  of  an  unfeigned  respect  for  the  opinion 
of  that  distinguished  judge,  the  author  is  constrained  to  let 
the  preceding  sections  stand  as  in  the  last  edition,  being  still 
convinced  that  the  decision  in  Bradshaw  v.  Bradshaw  is  correct. 

1  [1906]  2  Ch.  288.  »  [1910]  1  Ch.  (C.  A.)  1. 

*  [1909]  2  Ch.  450. 


460  THE   BULB   AGAINST  PERPETUITIES. 


CHAPTER    XVI. 
MORTGAGES. 

§  562.  Rights  at  Law.  —  When  the  condition  of  a  mortgage 
must  be  fulfilled,  if  at  all,  within  twenty-one  years  after  lives 
in  being,  —  and  this  is  the  case  with  the  vast  majority  of  mort- 
gages, —  no  question  of  remoteness  can  arise  as  to  the  legal 
rights  of  the  parties.  The  mortgagee  has  a  fee  simple  subject 
to  a  condition,  any  rights  under  which  must  begin  within  the 
limits  required  by  the  Rule  against  Perpetuities. 

§  563.  If  the  condition  is  such  that  the  mortgagor's  right  of 
re-entry  may  not  arise  until  a  period  beyond  the  limits  of  the 
Rule,  then  such  right  would  seem  to  be  too  remote.  But  in 
practice,  as  a  mortgagor  never  relies  upon  his  legal  right  of 
re-entry  to  revest  his  estate,  the  matter  is  not  very  important. 
And,  moreover,  in  the  United  States  a  right  of  entry  on  breach 
of  a  condition  is  generally,  however  erroneously  on  principle, 
considered  as  not  being  within  the  Rule  against  Perpetuities. 
See  §§  304  et  seq.,  ante. 

§  564.  Rights  in  Equity.  —  When  the  condition  of  a  mort- 
gage must  be  fulfilled,  if  at  all,  within  twenty-one  years  after 
lives  in  being,  no  question  of  remoteness  can  arise  as  to  the 
equitable  rights  of  the  parties.  The  mortgagor  is  regarded 
in  equity  as  the  owner,  and  the  mortgagee  as  having  a  lien 
which,  on  failure  to  fulfil  the  condition,  is  turned  into  a  right 
to  have  the  land  applied  in  discharge  of  his  debt.  The  failure 
to  fulfil  the  condition  in  the  mortgage  is  a  condition  prece- 
dent to  the  vesting  of  the  right,  but  as  the  condition  in  the 
mortgage  must,  ex  hypothesi,  be  fulfilled,  if  at  all,  within  the 
limits  of  the  Rule,  the  right  is  not  too  remote.1 

1  Sioux    City  Terminal    R.  R.      Co.  v.  Trust  Co.  of  N.  America, 

82  Fed.  Rep.  124. 


MORTGAGES.  461 

§  565.  If  there  is  a  power  in  the  mortgage  deed  authoriz- 
ing the  mortgagee  to  sell  at  any  time  after  default,  it  may  be 
said  that  as  this  power  can  be  exercised  at  any  time,  it  is  ex- 
ercisable  at  a  period  more  than  twenty-one  years  after  lives 
in  being,  and  is  therefore  void.1  But  to  this  it  may  fairly  be 
said  that  such  power  is  merely  a  remedy  given  to  a  party  to 
enforce  a  right  which  the  law  would  otherwise  enforce  for 
him;  and  if  he  has  a  present  right  and  a  present  remedy,  the 
fact  that  he  may  not  choose  at  once  to  exercise  his  remedy, 
and  that  therefore  a  title  may  not  be  acquired  by  a  sale  under 
the  power  till  a  period  beyond  the  limits  of  remoteness,  no 
more  invalidates  the  power  than  it  would  invalidate  a  title 
acquired  by  a  sale  under  order  of  court  in  a  foreclosure  suit.2 

§  566.  If  the  condition  of  the  mortgage  is  such  that  a  fail- 
ure to  fulfil  it  by  the  mortgagor  may  occur  more  than  twenty- 
one  years  after  lives  hi  being,  it  will  be  found  more  difficult 
to  sustain  the  rights  of  the  mortgagee.  Default  by  the  mort- 
gagor is  a  condition  precedent  to  the  right  of  the  mortgagee  to 
have  the  land  applied  in  discharge  of  the  debt;  and  if  the 
default  may  not  happen  till  a  remote  period,  —  for  instance,  if 
the  condition  of  the  mortgage  is  to  pay  $5,000  in  thirty  years, 
—  this  condition  would  seem  too  remote,  and  the  mortgagee's 
right  invalid. 

§  567.  Three  answers  to  this  difficulty  may  be  suggested. 
(1)  That  the  mortgagee  can  at  any  time  assign  or  discharge 
the  mortgage.3  But,  as  we  have  seen,4  the  fact  that  an  inter- 
est subject  to  a  condition  precedent  is  alienable  does  not  save 
it  from  the  operation  of  the  Rule  against  Perpetuities. 

§  568.  (2)  That  the  mortgagor  can  pay  off  the  debt  at 
any  time.5  But  the  short  answer  to  this,  as  applied  to  the 
case  we  are  considering,  is  that  the  mortgagor  cannot  insist 
upon  paying  off  the  mortgage,  debt  before  it  is  due.6 

1  §  475,  ante.  6  Lewis,  Perp.  560;  1  Pow.  Dev. 

2  §§  281,  303,  ante.  (Jarm.  ed.)  250,  251,  note. 

1  See  Gilbertson  v.  Richards,  5  '  Even  if  the  mortgagor  had  the 

H.  &  N.  453,  454,  459.  option  to  pay  off  the  mortgage  debt 

4  Chap.  VII.,  ante.  at  any  time,  it  is  conceived  the  re- 


462 


THE    RULE    AGAINST   PERPETUITIES. 


§  569.  (3)  That  the  question  is  only  one  of  remedy.  It 
may  be  called  a  question  of  remedy,  but  this  seems  only  a 
piece  of  verbal  jugglery  to  avoid  reaching  an  unwelcome  con- 
clusion. The  right  in  equity  to  the  land  does  not  pass  from 
the  mortgagor,  the  right  of  the  mortgagee  to  have  the  land 
applied  for  his  benefit  does  not  arise,  until  there  is  a  default. 

§  570.  Mortgages  in  fee  for  the  payment  of  money  or  the 
performance  of  other  acts  at  a  date  more  than  twenty-one  years 
after  lives  in  being  have  probably  been  few.  The  question 
may  be  some  day  presented  in  connection  with  railroad  mort- 
gages. In  view  of  the  large  interests  likely  to  be  involved, 
and  the  novelty  of  the  question,  the  courts  may  perhaps  sus- 
tain the  validity  of  such  mortgages.  It  is  to  be  hoped,  should 
this  be  the  case,  that  they  will  frankly  declare  them  an  excep- 
tion to  the  Rule  against  Perpetuities,  and  not,  by  attempting 
to  reconcile  them  with  the  Rule,  bring  confusion  into  the  Rule 
itself.1 


suit  would  be  the  same.  Suppose 
an  estate  was  given  to  A.  and  his 
heirs,  but  unless  within  fifty  years 
they  should  pay  $5,000  to  a  col- 
lege, the  land  should  go  to  B.  and 
his  heirs.  No  one  would  doubt 
that  the  gift  to  B.  was  too  remote. 
Yet  A.  by  paying  the  money  at  any 
time  would  destroy  the  gift.  When 
the  owner  of  the  present  estate  can 
destroy  a  future  interest  at  his 
pleasure,  such  future  estate  is  not 
too  remote;  thus  a  remainder  after 
an  estate  tail  is  never  too  remote; 
but  if  he  can  avoid  it  only  by  ful- 
filling an  onerous  condition,  then 
it  comes  within  the  scope  of  the 
Rule  against  Perpetuities. 

1  But  see  an  article  by  Mr. 
Charles  Sweet,  18  Jurid.  Rev.  132, 
139.  Cf.  London  &  S.  W.  R.  Co.  v. 
Gomm,  20  Ch.  D.  562,  §  275,  ante, 
which  shakes  badly  Gilbertson  v. 
Richards,  4  H.  &  N.  277;  5  H.  & 


N.  453;  §§271-273,  ante.  See 
Sugd.  Pow.  (8th  ed.)  16.  The  Su- 
preme Court  of  California  seems  to 
have  acted  in  this  spirit  in  constru- 
ing the  statutes  of  that  State,  when 
passing  upon  the  validity  of  a  trust 
deed,  the  form  which  mortgages 
take  in  many  of  the  States.  In 
Sacramento  Bank  v.  Alcorn,  121 
Cal.  379,  with  reference  to  an  ap- 
peal founded  on  the  objection  that 
a  trust  deed  was  void  because  it  re- 
strained alienation  for  a  period  not 
dependent  upon  the  duration  of  life, 
the  Court  said:  "The  appeal  is  sup- 
ported by  very  elaborate  and  forci- 
ble briefs,  which,  if  the  questions 
were  open  for  consideration,  would 
challenge  and  receive  serious  and 
careful  examination,  but  we  do  not 
think  the  matter  can  now  be  con- 
sidered open  for  discussion.  Our 
own  records  will  disclose  the  fact 
that  trust  deeds  have  been  quite 


MORTGAGES.  463 

§  570  a.  Further,  the  Courts  in  the  United  States  have 
generally  held  that  legal  rights  of  entry  for  breach  of  condition 
are  not  within  the  Rule  against  Perpetuities,1  and  there  seems 
no  special  reason  why  there  should  be  any  exception  in  case 
of  conditions  in  mortgage  deeds,2  and  it  may  be  said  that 
equity  in  this  matter  should  follow  the  law.  It  is  questionable 
how  far  this  would  be  a  proper  application  of  that  maxim. 
But  the  Courts  having,  however  unadvisedly,  taken  the  first 
step  and  held  such  conditions  good  at  law,  it  would  not  perhaps 
be  strange  if  they  went  on  and  took  this  second  step  also. 

§  571.  Supposing  such  a  mortgage  should  chance  to  be  held 
bad,  what  would  be  the  consequences?  Where  a  mortgage 
passes  a  legal  fee  to  the  mortgagee,  the  court,  before  ordering 
a  reconveyance,  would  compel  the  mortgagor  to  account  for 
any  consideration  received.  Where  no  legal  title  passes  to 
the  mortgagee,  as  is  the  case  in  several  of  the  United  States, 
it  would  seem  that  the  mortgagee  would  be  without  security.3 

§  571  a.  Pledges  must  be  governed  by  the  same  rules  as 
mortgages.  Sinking  funds  are  generally  created  and  governed 
by  Statute.  When  this  is  not  the  case,  they  seem  to  differ 
from  mortgages,  in  that  the  mortgaged  property  belongs  (in 
equity)  to  the  mortgagor,  for  the  mortgagee  it  is  only  security, 
while  the  sinking  fund  is  generally  the  immediate  property  in 
equity  of  the  creditor;  and  the  allowance  of  a  sinking  fund 
raises  perhaps  a  question  as  to  a  restraint  on  alienation,  but 
not  one  which  comes  within  the  scope  of  the  Rule  against 
Perpetuities. 

frequently    used    as    security    for  it  should  not  be  disturbed."     See 

loans.      Their    validity    has    been  Camp    v.    Land,     122    Cal.    167; 

upheld  in  numerous  cases,  begin-  Staacke  v.  Bell,  125  Cal.  309;  At- 

ning  very  soon  after  the  adoption  lantic    Trust    Co.    v.    Woodbridge 

of  the  code  and  continuing  until  Canal  Co.,  86  Fed.  Rep.  975. 
the  present  time.    These  decisions,  *  See  §§  304  et  seq.,  ante. 

which  have  been  uniform,  establish  *  See  §  563,  ante. 

a  conclusion  which  has  become  a  *  Such  mortgages  will  often  be 

rule    of    property,    and    however  found  to  have  been  authorized  or 

thoroughly  we  might  now  be  con-  confirmed  by  legislative  action, 
vinced  that  the  rule  is  erroneous, 


464  THE   RULE  AGAINST  PERPETUITIES. 


CHAPTER  XVII. 
CUSTOMARY  RIGHTS. 

§  572.  THERE  is  in  England  a  class  of  legal  rights  which 
seem  to  be  exempt  from  the  operation  of  the  Rule  against 
Perpetuities,  namely,  easements  acquired  by  custom. 

§  573.  A  right  is  acquired  by  custom  when  it  belongs  to 
the  inhabitants  of  a  particular  town  or  other  place,1  and  is  to 
be  distinguished  from  a  right  acquired  by  prescription,  which 
is  a  right  belonging  to  a  particular  person,  or  to  the  owner  of 
a  particular  parcel  of  land.2 

§  574.  When  a  man  has  a  present  right  by  prescription,  all 
persons  who  may  at  any  time  enjoy  the  right  will  take  under 
him,  it  is  under  his  control,  and  being  a  present  right  it  is 
not  obnoxious  to  the  Rule  against  Perpetuities.  But  when  a 
man  has  a  right  by  custom,  since  he  has  it  only  as  an  inhab- 
itant, he  loses  it  when  he  ceases  to  be  an  inhabitant;  and 
no  future  possessor  of  the  right  holds  under  any  former  pos- 
sessor, for  he  does  not  take  as  heir  or  assignee,  but  as  inhab- 
itant. The  right  of  a  future  inhabitant  is  not  in  the  control 
of  any  present  inhabitant.3  It  is  really  a  new  right  arising 
for  the  first  time  to  each  owner  when  he  becomes  an  inhabit- 
ant; it  is  subject,  in  other  words,  to  the  condition  precedent 
of  his  becoming  an  inhabitant;  and  as  this  may  not  happen 
till  a  remote  period,  such  a  right  seems  to  be  in  violation 
of  the  Rule  against  Perpetuities.4 

1  Sometimes  when  it  belongs  to  Jac.  152;  Jacobson  v.  Fountain,  2 

persons  following  a  particular  call-  Johns.  170,  176. 
ing.     §  577,  post.  *  Cf.    what     is    said     by    Mr. 

1  Co.    Lit.   113  6.     2   Bl.  Com.  Charles  Sweet  in  his  note  to  Chal- 

263.    Hall,  Commons,  108-112.  lis,  Real  Prop.  (3d  ed.)  209,  210. 

1  See  Smith  v.  Gatewood,  Cro. 


CUSTOMARY   RIGHTS. 


465 


§  575.  Yet  certain  of  these  rights  are  held  good  in  Eng- 
land. The  question  of  perpetuity  seems  never  to  have  been 
considered  with  regard  to  them.  And,  indeed,  all  of  them  in 
theory,  and  probably  many  of  them  in  fact,  go  back  to  a  time 
when  the  Rule  against  Perpetuities  did  not  exist. 

§  576.  Thus  the  inhabitants  of  a  village  may  have  a  right 
of  way,  e.  g.  to  church  or  to  market.1  So  to  dance  on  a  green.2 
So  to  have  games  or  horse-races  on  certain  land.3  So  to  take 
water.4 

§  577.  Such  customs  have  been  held  good  even  when  not 
confined  to  the  inhabitants  of  a  particular  locality,  but  ex- 
tended to  all  of  a  certain  occupation.  Thus  a  custom  for 
victuallers  to  erect  booths  on  the  land  of  A.  during  a  fair  has 
been  held  good.5  In  like  manner  a  custom  for  fishers  to  dry 
their  nets  on  shore  which  is  private  property  is  good.6 


1  See  7  Edw.  IV.  26;  Boteler  v. 
Bristow,  15  Edw.  IV.  29;  18  Edw. 
IV.  3;  21  Edw.  IV.  54;  Withers  v. 
Iseham,  Dyer,  70  a,  71  a;  Goodday 
v.  Michell,  Cro.  El.  441;  Owen,  71; 
Baker  v.  Brereman,  Cro.  Car.  418, 
419;  Gateward's  Case,  6  Co.  596; 
sub  nom.  Smith  v.  Gatewood,  Cro. 
Jac.  152;  Bell  v.  Wardell,  Willes, 
202;  Poynton  v.  Wilson,  2  Lutw. 
1506;  Grimstead  v.  Marlowe,  4  T.R. 
717,  718;  Co.  Lit.  110  6. 

1  Abbot  v.  Weekly,  1  Lev.  176. 
Hall  v.  Nottingham,  1  Ex.  D.  1. 
Williams,  Commons,  149. 

»  Fitch  v.  Rawling,  2  H.  Bl.  393. 
Mounsey  v.  Ismay,  1  H.  &  C.  729; 
3  H.  &  C.  486.  See  Millechamp  v. 
Hudson,  Willes,  205,  note. 

4  Race  v.  Ward,  4  E.  &  B.  702. 
See  Boteler  v.  Bristow,  15  Edw. 
IV.  29;  Goodday  v.  Michell,  Cro. 
El.  441;  Owen,  71;  Pain  v.  Pat- 
rick, 3  Mod.  289,  294;  Weekly  v. 
Wildman,  1  Ld.  Raym.  405,  407; 
Fitch  v.  Rawling,  2  H.  Bl.  393, 
395. 


s  Tyson  v.  Smith,  6  A.  &  E. 
745;  9  A.  &  E.  406. 

«  See  8  Edw.  IV.  18,  19;  Bote- 
ler v.  Bristow,  15  Edw.  IV.  29; 
Baker  v.  Brereman,  Cro.  Car.  418; 
Pain  v.  Patrick,  3  Mod.  289,  294; 
Mayor  of  Linn  Regis  v.  Taylor,  3 
Lev.  160;  Fitch  v.  Rawling,  2  H. 
Bl.  393,  398;  Blundell  v.  Catterall, 
5  B.  &  Aid.  268,  295-298;  Tyson  v. 
Smith,  9  A.  &  E.  406,  411,  412; 
Hale,  De  Port.  (Harg.  Law  Tracts), 
86;  Hall,  Sea  Shore,  176,  note; 
Coulson  &  Forbes,  Waters  (3d  ed.) 
391. 

This  has  been  said  to  be  a  com- 
mon-law right.  Case  of  Tanistry, 
Davis,  32  6.  Callis,  Sewers,  73. 
But  the  contrary  is  now  settled. 
See  8  Edw.  IV.  18,  19  (discussed 
in  Blundell  v.  Catterall,  5  B.  &  Aid. 
268,  295,  298,  and  in  Tyson  v. 
Smith,  9  A.  &  E.  406,  411,  412; 
translated  Hall,  Commons,  159  et 
seq.);  Baker  v.  Brereman,  Cro.  Car. 
418;  Anon.,  Sav.  11;  Gray  v.  Bond, 
2  Brod.  &  B.  667;  5  J.  B.  Moore, 


466 


THE   RULE   AGAINST   PERPETUITIES. 


§  578.  And  there  are  other  cases  which  illustrate  this  class 
of  customary  rights.1 

§  579.  But  although  the  Rule  against  Perpetuities  was  not 
applied  to  customary  rights  of  this  sort,  the  inconvenience 
which  might  arise  from  these  unreleasable  rights  hampering 
land  was  felt;  and  it  was  early  decided  that  such  rights  could 
arise  by  custom  only  when  they  were  in  the  nature  of  ease- 
ments, and  that  no  profits  a  prendre,  such  as  commons,  could 
have  their  origin  in  custom.  The  authorities  to  this  point 
are  many.2 

§  580.  In  Tyson  v.  Smith 3  there  is  a  suggestion  that  if 
compensation  be  paid  for  such  a  profit  a  prendre  it  may  be 
good;  but  the  right  in  that  case  seems  to  have  been  an  ease- 


527;  Blundell  v.  Catterall,  ubi  sup.', 
Duncan  v.  Sylvester,  24  Me.  482; 
Locke  v.  Motley,  2  Gray,  265; 
Cortelyou  v.  Van  Brundt,  2  Johns. 
357;  Brink  v.  Richtmyer,  14  Johns. 
255;  Whitaker  v.  Burhans,  62  Barb. 
237  (see  65  N.  Y.  559);  Shrunk  v. 
Schuylkill  Nav.  Co.,  14  S.  &  R.  71, 
81;  Hoyle  v.  M'Cunn,  21  Dunlop, 
Ct.  of  Sess.  96;  Woolrych,  Waters 
(2d  ed.)  163,  164;  Hall,  Sea  Shore, 
176,  note;  Coulson  &  Forbes,  Wa- 
ters (3d  ed.)  391;  Gould,  Waters, 
§100. 

1  Fowler  v.  Dale,  Cro.  El.  362. 
Shelton   v.    Montague,    Hob.    118. 
Bond's  Case,  March,  16.     King  v. 
Ecclesfield,  1  B.  &  Aid.  348,  360. 
Sowerby  v.  Coleman,  L.  R.  2  Ex. 
96.    Forbes  v .  Eccl.  Commissioners, 
L.  R.  15  Eq.  51.    Dyce  v.  Hay,  1 
Macq.  305,  311. 

2  The    following    are  the  prin- 
cipal.   Boteler  v.  Bristow,  15  Edw. 
IV.  29;  Id.  32  (see  7  Ap.  Cas.  659, 
660;    Hall,    Commons,     159-162). 
Gateward's  Case,  6  Co.  59  b;  sub 
nom.  Smith  v.  Gatewood,  Cro.  Jac. 
152;  3  Leon.  202  (see  7  Ap.  Gas. 


660).  Fowler  v.  Dale,  Cro.  El.  362. 
Weekly  v.  Wildman,  1  Ld.  Raym. 
405.  Bean  v.  Bloom,  2  W.  Bl.  926; 
sub  nom.  Beau  v.  Bloom,  3  Wils. 
456  (which  is  not  contra).  Selby  v. 
Robinson,  2  T.  R.  758.  Grimstead 
v.  Marlowe,  4  T.  R.  717.  Blewett 
v.  Tregonning,  3  A.  &  E.  554;  5  N. 
&  M.  234.  Lloyd  v.  Jones,  6  C.  B. 
81.  Race  v.  Ward,  4  E.  &  B.  702. 
Bland  v.  Lipscombe,  Id.  713,  note. 
A.  G.  v.  Mathias,  4  K.  &  J.  579. 
Constable  v.  Nicholson,  14  C.  B. 
N.  s.  230.  Knight  v.  King,  20  L.  T. 
R.  494.  Chilton  t>.  London,  7  Ch. 
D.  735.  Rivers  v.  Adams,  3  Ex.  D. 
361.  See  Mayor  of  Saltash  v. 
Goodman,  5  C.  P.  D.  431;  7  Q.  B. 
D.  106;  7  Ap.  Cas.  633,  et  passim; 
§§582,  583,  post;  Chesterfield  v. 
Harris,  [1908]  1  Ch.  230;  [1908]  2 
Ch.  (C.  A.)  397;  sub  nom.  Harris  0. 
Chesterfield,  [1911]  A.  C.  623,  §  583, 
note,  post;  1  Wms.  Saund.  340  c, 
note  3;  Hall,  Commons,  159-212; 
Williams,  Commons,  194-197,  278- 
280. 

3  9  A.  &  E.  406,  425. 


CUSTOMARY   RIGHTS.  467 

ment,  and  nothing  of  a  like  effect  appears  anywhere  else.  In 
Mayor  of  Linn  Regis  v.  Taylor  1  a  custom  for  the  owners  of 
ships  in  a  certain  town  to  take  ballast  was  held  good.2  But 
in  the  light  of  later  cases  this  can  hardly  be  supported. 

§  581.  It  has  sometimes  been  attempted  to  support  a  profit 
a  prendre  for  inhabitants  on  the  ground  of  a  grant  from  the 
Crown.  In  Willingale  v.  Maitland 3  the  bill  alleged  that  a 
profit  a  prendre  had  been  granted  by  Queen  Elizabeth  to  the 
inhabitants  of  a  certain  parish.  The  defendant  demurred  to 
the  bill,  thus  admitting  the  actual  grant.  Lord  Romilly, 
M.  R.,  held,  in  accordance  with  some  old  authorities,  that  a 
grant  from  the  Crown  to  the  inhabitants  of  any  place,  ipso 
facto,  incorporated  them.  In  Chilton  v.  London  4  Sir  George 
Jessel,  M.  R.,  held  that  a  bill  to  enforce  such  an  alleged  right, 
if  it  could  be  brought  at  all,  must  be  brought  by,  or  at  least 
on  behalf  of,  all  the  inhabitants.  And  in  Rivers  v.  Adams  5 
it  was  held  that  no  presumption  of  a  grant  by  the  Crown  to 
inhabitants  would  be  made  to  support  an  immemorial  custom. 
Rivers  v.  Adams  has  been  approved  in  Mayor  of  Saltash  v. 
Goodman.6 

§  582.  In  Mayor  of  Saltash  v.  Goodman 7  the  plaintiffs 
claimed  a  several  oyster  fishery,  and  sued  the  defendants 
for  disturbing  it.  The  defendants  justified  under  an  alleged 
custom  for  all  free  inhabitants  of  ancient  tenements  in  the 
borough  of  Saltash  to  take  oysters  at  certain  times.  It  was 
admitted  by  the  plaintiffs  that  the  custom  had  existed  from 
time  immemorial;  and  by  the  defendants  it  was  admitted, 
and  by  all  the  judges  declared,  that  the  custom  could  not  be 
good  as  a  profit  in  alieno  solo.  In  the  Common  Pleas  Division 
Grove  and  Denman,  JJ.,  held  that  the  custom  was  bad.  In 

1  3  Lev.  160.  448;  by  Denman,  J.,  Id.  454;  by 

1  Hall,  Commons,  240,  241;  and  Lord  Selborne,  C.,  7  Ap.  Gas.  637; 

see  Padwick  v.  Knight,  7  Ex.  854.  by  Lord  Blackburn,  Id.  662;  and 

8  L.  R.  3  Eq.  103.  by  Lord  Watson,  Id.  664. 
«  7  Ch.  D.  735.  7  5  C.  P.  D.  431;  7  Q.  B.  D.  106; 

5  3  Ex.  D.  361.  sub  nom.   Goodman   v.   Mayor  of 

«  By  Grove,  J.,  5  C.  P.  D.  445-  Saltash,  7  Ap.  Gas.  633. 


468  THE   RULE   AGAINST  PERPETUITIES. 

the  Court  of  Appeal  Baggallay,  L.  J.,  held  that  the  plaintiffs 
did  not  have  a  several  oyster  fishery;  but  Brett  and  Cotton, 
L.  JJ.,  agreed  with  the  Court  below  that  the  custom  could 
not  be  supported.  The  case  was  then  carried  to  the  House 
of  Lords,  and  was  there  twice  argued.  Lord  Blackburn  held 
that  the  judgment  of  the  courts  below  should  be  affirmed,  but 
Lord  Selborne,  C.,  and  Lords  Cairns,  Watson,  Bramwell,  and 
Fitzgerald  thought  it  should  be  reversed.1 

§  583.  The  ground  on  which  the  House  of  Lords  supported 
the  custom  was  this:  If  the  custom  could  have  had  a  lawful 
origin,  such  origin  must  be  presumed;  and  such  lawful  origin 
would  have  been  a  grant  to  the  borough,  with  a  condition  in 
favor  of  the  free  inhabitants.  This  so-called  condition  seems  to 
have  been  considered  by  the  law  lords  to  have  given  an  equitable 
interest.  Lords  Selborne,  Cairns,  and  Watson  distinctly  sup- 
ported the  custom  as  a  charitable  trust.2  And  it  seems  clear 
that  it  is  only  as  a  charitable  trust,  if  at  all,  that  such  a  right 
can  be  supported.  If  the  Crown,  in  a  branch  of  the  sea  where 
every  one  can  fish  (or  where  no  one  can  fish,  —  it  matters  not 
which),  grants  a  several  fishery  to  a  borough,  with  a  condition 
that  the  inhabitants  of  a  certain  place  can  fish  also  at  a  time  cer- 
tain, it  is  just  as  much  a  grant  to  those  inhabitants  as  it  is  to  the 
borough,  and  therefore,  in  accordance  with  Rivers  v.  Adams,3 
cannot  be  assumed  as  the  basis  for  an  immemorial  custom.4 

1  It  is  to  be  observed  that  of  the  closure  Act,  35  Ch.  D.  355,   369 

ten  judges  who  passed  upon  the  et  seq.;  38  Ch.  D.  520,  530;  In  re  St. 

validity  of  the  defence  (Baggallay,  Stephen,  39  Ch.  D.  492,  500,  501; 

L.  J.,  alone  holding  that  the  plain-  In  re  Norwich  Town  Close  Estate 

tiffs  had  not  made  out  their  title),  Charity,  40  Ch.  D.  298,  301,  306. 

five,  Grove,  Denman,  Brett,  Cot-  Cf.  Green  v.  Putnam,  8  Gush.  21; 

ton,  and  Lord  Blackburn,  were  of  Higginson    v.    Turner,    171    Mass, 

opinion  against  the  defendants,  as  586,  591;  Challis,  Real  Prop.   (3d 

many  as  were  of  opinion  for  them;  ed.)  195. 
and  that  of  these  last,  one,  Lord  *  §  581,  ante. 

Watson,  was  a  Scotch  judge,  who  *  See     Chesterfield    v.     Harris, 

owned  he  did  not  know  much  about  [1908]  1  Gh.  230;  [1908]  2  Ch.  (C. 

the  matter.  A.)  397;  sub  nom.  Harris  v.  Ches- 

1  See    §§   682,    685,    note    post.  terfield,   [1911]  A.  C.   623.     Free- 
See  also  In  re    Christchurch    In-  holders    in    parishes    adjoining    a 


CUSTOMARY  RIGHTS.  469 

§  584.  In  America  the  decisions  that  no  profit  a  prendre 
can  be  created  by  custom  have  been  often  and  uniformly 
followed.1 

§  585.  A  more  doubtful  and  difficult  question  is  to  determine 
whether  in  America  easements  can  be  created  by  custom  in 
inhabitants.  It  has  been  shown 2  that  they  can  be  so  created 
in  England.  In  New  Hampshire  it  has  been  held  3  that  ease- 
ments in  inhabitants  can  be  created  by  custom;  and  in  several 
of  the  cases  where  it  has  been  held  that  profits  a  prendre  can- 
not be  created  by  custom,  it  is  said  that  easements  can  be.4 
In  New  Jersey  and  Virginia  it  has  been  held  that  no  right  can 
arise  from  custom,  for  no  custom  in  America  can  have  existed 
from  time  immemorial.5 

§  586.  As  a  practical  matter,  the  doctrine  held  in  New 
Jersey  and  Virginia  seems  preferable  to  that  adopted  in  New 
Hampshire.  The  objection  which  exists  to  allowing  profits  a 
prendre  by  custom  really  applies,  though  in  a  less  degree,  to 
allowing  easements  by  custom.  In  England  the  latter  have 

non-tidal   river   had   been   in   the  See  Ackerman  v.  Shelp,  3  Halst. 

habit  of  fishing  openly,  as  of  right,  125. 
and    commercially,    for    centuries.  *  §§  575-578,  ante. 

Riparian   proprietors    claiming    to  J  Nudd  v.  Hobbs,  17  N.  H.  524. 

be  owners  of  the  bed  of  the  river  Knowles  v.  Dow,  22  N.  H.  387. 
brought    an     action     of    trespass  4  E.  g.  Littlefield  v.  Maxwell,  31 

against  the  freeholders.    The  Court  Me.  134;  Hill  v.  Lord,  48  Me.  83; 

of  Appeal  gave  judgment  for  the  Perley  v.  Langley,   7  N.  H.  233; 

plaintiffs,  and  the  House  of  Lords  Smith  v .  Floyd,  18  Barb.  522.    See 

(by  4  to  3)  affirmed  the  judgment.  also  Coolidge  v.  Learned,  8  Pick. 

The  judges  of  the  Court  of  Appeal  504;  Kent  v.  Waite,  10  Pick.   138, 

distinguished  Mayor  of  Saltash  v.  142. 

Goodman,  on  the  ground  that  that  B  Ackerman  v.  Shelp,  3  Halst. 
was  the  case  of  a  trust.  125  (see  Allen  t>.  Stevens,  5  Dutch. 
1  Littlefield  v.  Maxwell,  31  Me.  509,  513).  Ocean  Beach  Ass.  v. 
134.  Hill  v.  Lord,  48  Me.  83.  Per-  Brinley,  34  N.  J.  Eq.  438.  Al- 
ley v.  Langley,  7  N.  H.  233.  Nudd  bright  v.  Cartwright,  64  N.  J.  L. 
v.  Hobbs,  17  N.  H.  524.  Waters  v.  330,  332,  333.  Harris  v.  Carson,  7 
Lilley,  4  Pick.  145,  148.  Knowles  v.  Leigh,  632.  Delaplane  v.  Cren- 
Nichols,  cited  in  Kenyon  v.  Nichols,  shaw,  15  Grat.  457.  So  said  also 
1  R.  I.  106,  110,  111.  Smith  v.  by  a  lower  court  in  Pennsylvania, 
Floyd,  18  Barb.  522.  Cobb  v.  Young  v.  Collins,  2  Brown,  (Pa.) 
Davenport,  3  Vroom,  369,  389.  292. 


470  THE   RULE  AGAINST   PERPETUITIES. 

been  recognized  by  the  law,  probably  owing  to  the  great  an- 
tiquity of  many  of  them,  and  to  the  fact  that  they  have  not 
been  found  burdensome.  But  in  a  country  like  most  parts  of 
America,  where  a  population,  sparsely  scattered  at  first,  has 
rapidly  increased  in  density,  such  rights  might  become  very 
oppressive.  The  clog  that  they  would  put  on  the  use  and 
transfer  of  land  would  far  outweigh  any  advantage  that  could 
be  acquired  from  them.  Especially  it  should  be  remembered 
that  they  cannot  be  released,  for  no  inhabitant,  or  body  of 
inhabitants,  is  entitled  to  speak  for  future  inhabitants.  Such 
rights  form  perpetuities  of  the  most  objectionable  character. 

§  586  a.  Easements  are  often  said  to  be  acquired  by  pre- 
scription in  the  United  States,  but  in  truth  they  are  acquired 
by  adverse  use.  When  a  way,  for  instance,  has  been  used  for 
twenty  years  under  a  claim  of  right,  the  courts,  following  the 
analogy  of  the  Statutes  of  Limitations,  consider  that  an  ease- 
ment of  way  is  created.  The  distinction  between  prescription 
and  adverse  user  is  shown  in  the  case  of  a  duty  to  pay  money; 
such  a  duty  could  be  raised  by  prescription,  but  cannot  be 
by  adverse  user.  In  Whittenton  Manuf.  Co.  v.  Staples  l  it  was 
held,  by  four  judges  against  three,  that  a  duty  to  pay  one-fifth 
of  the  cost  of  repairing  a  dam  might  be  imposed  as  a  burden 
by  prescription  upon  a  mill  which  drew  its  water  from  the 
reservoir  at  the  dam.  If  the  doctrine  held  in  New  Jersey  and 
Virginia  that  rights  cannot  be  created  by  prescription  in  the 
United  States  be  correct,  then  the  decision  in  Whittenton  Manuf. 
Co.  v.  Staples  is  wrong.  It  is  respectfully  submitted  that  that 
doctrine  is  correct  and  that  the  decision  was  wrong.2  Even  if 
an  obligation  to  fence  can  be  raised  by  prescription !  the  law 

1  164  Mass.  319.  son  v.  Blazer,  2  Binn.  475;  3  Dane, 

1  But  see  Rust  v.  Lord,  6  Mass.  Ab.  253. 

90,  97;  Coolidge  ».  Learned,  8  Pick.  •  Binney  v.  Hull,  5  Pick.  503. 

503;  2  Dane,  Ab.  640.     Cf.  Dev-  See  Bronson  v.  Coffin,   108  Mass. 

ereux  0.  Elkins,  5  Dane,  Ab.  568;  175,   188;  Adams  v.  Van  Alstyne, 

Spear  v.  Bicknell,  5  Mass.  125,  130,  25  N.  Y.  232,  235.    Cf.  Castner  ». 

Rand's  note;  Mitchell  v.  Starbuck,  Riegel,  54  N.  J.  L.  498. 
10  Mass.  5,  11,  Rand's  note;  Car- 


CUSTOMARY   RIGHTS.  471 

applicable  to  such  an  anomalous  and  "spurious"  easement 
ought  not,  it  is  submitted,  to  be  extended.1 

§  587.  Cases  where  all  the  world  has  rights  over  a  man's 
land,  of  which  the  most  striking  instance  is  that  of  a  highway, 
might  be  considered  as  exceptions  to  the  Rule  against  Perpe- 
tuities. But  this  would  be  incorrect.  Although  the  Sovereign 
does  not  strictly  have  an  easement  in  the  highway  (notwith- 
standing the  expression,  the  King's  highway),  yet  it  has  a 
present,  absolute  control,  and  must  be  considered  as  represent- 
ing the  rights  of  all  persons,  future  as  well  as  present.2 

§  588.  Easements  may  be  attached  to  land  by  local  custom; 
of  course  to  such  rights  the  present  remarks  do  not  apply. 
Whoever  owns  the  land  owns  the  easements.  They  do  not 
differ,  as  to  remoteness,  from  easements  created  by  prescription 
or  by  grant.3 

1  See  the  dissenting  opinion  in  Wend.  425;  Curtis  v.  Keesler,  14 

Whittenton  Manuf.  Co.  v.  Staples,  Barb.  511;  Talbottv.  Grace,  30  Ind. 

164  Mass.  319^334.  389. 

1  As  to  what  rights  the  public  3  Carlyon  v.  Levering,  1  H.  & 

can  gain  by  prescription  or  adverse  N.  784.  See  Gaved  v.  Martyn,  19 

uses,  see  State  v.  Wilson,  42  Me.  9;  C.  B.  N.  s.  732;  Ivimey  v.  Stocker, 

Coolidge  v.  Learned,  8  Pick.  504;  L.  R.  1  Ch.  396.  Smirke,  Report  of 

Peareall  v.  Post,  20  Wend.  Ill;  22  Vice  v.  Thomas. 


472  THE   RULE   AGAINST  PERPETUITIES. 


CHAPTER  XVIII. 
CHARITABLE  TRUSTS. 

§  589.  IT  is  commonly  said  that  gifts  to  charities  are  not 
subject  to  the  Rule  against  Perpetuities.  This  may  be  to  a 
certain  extent  correct,  but  the  subject  is  involved  in  consider- 
able confusion  owing  to  the  ambiguity  of  the  terms  employed. 

§  590.  As  has  been  shown,1  the  natural  meaning  of  "a  per- 
petuity" is  "an  inalienable  indestructible  interest."  In  this 
sense  charitable  trusts  are  perpetuities.  And  this  is  no  arbi- 
trary doctrine,  but  arises  from  the  nature  of  such  trusts.  For 
while,  generally,  a  trust  is  not  good  unless  there  be  a  natural 
or  artificial  cestui  que  trust,  charitable  trusts  are  an  exception. 
They  are  recognized  as  valid,  but  yet  they  do  not  ordinarily 
have  any  definite  cestuis  que  trust.2  They  are  therefore  inalien- 
able, because  there  is  no  one  to  alienate  them.  No  one  has 
any  alienable  rights,  because  no  one  has  any  rights.3 

1  §§  140  el  seq.,  ante.    See  also  voted   to   a   charitable   trust   and 
§§2,   3,   236,   268,   ante;   1   Jarm.  apply  it  on  other  trusts,  or  give  it 
Wills  (6th  ed.)  367.  to  individuals;  although  this  last, 

2  The  question  whether  a  trust  of  course,  would  not  at  the  present 
for  definite   persons   can   ever  be  day  be  done.    See  A.  G.  v.  Buller, 
considered  a   charity   is  discussed  Jac.  407,  412. 

App.  A,  §§  680  et  seq.,  post.  In  the  United  States,  under  the 

3  When  it  is  said  that  property  provision  of  the  Constitution  (art. 
given   on   charitable   trusts   is   in-  I.   §  10),  that  no  State  shall  pass 
alienable,  it  is  not  meant  that  such  any  law  impairing  the  obligation 
property  cannot  be  alienated  by  the  of  contracts,  as  interpreted  by  the 
paramount  action  of  the  sovereign,  case  of  Dartmouth  College  v .  Wood- 
through    the    Legislature    or    the  ward,  4  Wheat.  518,  charitable  gifts 
courts.  cannot  be  destroyed.     See  Tharp 

By   the   Legislature.  —  In    Eng-  v.  Fleming,  1  Houst.  580.    But  the 

land,  the  power  of  Parliament  being  Legislature  can  authorize  a  sale  for 

unlimited  in  such  matters,  it  can  change  of  investment.     Stanley  v. 

undoubtedly    take     property    de-  Colt,  5  Wall.  119.     Pine  St.  Soc. 


CHARITABLE   TRUSTS. 


473 


§  591.  But  the  Rule  against  Perpetuities  is  not  directed  at 
preventing  the  alienation  of  present  interests,  but  against  the 


v.  Weld,  12  Gray,  570.  See  Sohier 
v.  Trinity  Church,  109  Mass.  1; 
Ould  v.  Washington  Hospital,  95 
U.  S.  303,  312.  Contra,  Tharp  v. 
Fleming,  1  Houst.  580. 

By  a  Court  of  Equity.  —  Equity, 
of  course,  has  no  authority  to  de- 
stroy a  charitable  trust,  but  it  can 
order  a  sale  of  the  property  and  re- 
investment. This  has  been  some- 
times done  in  England.  A.  G.  i>. 
Nethercoat,  1  Hare,  400,  note. 
Parke's  Charity,  12  Sim.  329.  Re 
Overseers  of  Ecclesall,  16  Beav. 
297.  A.  G.  v.  Archbishop  of  York, 
17  Beav.  495,  501.  Re  Ashton 
Charity,  22  Beav.  288.  Re  Col- 
ston's Hospital,  27  Beav.  16.  Re 
North  Shields  Old  Meeting  House, 
7  W.  R.  541.  And  the  power  to  do 
it  has  often  been  asserted.  A.  G. 
v.  Warren,  2  Swanst.  291,  302,  303; 
1  Wils.  Ch.  387,  411,  412.  A.  G.  v. 
Newark,  1  Hare,  395,  400,  402. 
A.  G.  v.  Kerr,  2  Beav.  420,  428. 
A.  G.  t;.  South  Sea  Co.,  4  Beav. 
453.  Tud.  Char.  (3d  ed.)  250- 
252.  Lewin,  Trusts  (10th  ed.)  614. 
The  English  Court  of  Chancery 
is,  however,  very  cautious  hi  exer- 
cising the  power.  A.  G.  v.  Buller, 
Jac.  407.  A.  G.  v.  Newark,  1 
Hare,  395,  412.  Re  Suir  Island 
School,  3  J.  &  Lat.  171.  Re  Ly- 
ford's  Charity,  16  Beav.  297,  note. 
Re  Newton's  Charity,  12  Jur.  1011. 
Re  North  Shields  Old  Meeting 
House,  7  W.  R.  541.  See  also  A.  G. 
v.  Cross,  3  Mer.  524,  539;  A.  G. 
v.  Hungerford,  8  Bligh,  437,  457 
et  seq.;  2  Cl.  &  F.  357,  374  et  seq. 
(cf.  Sugd.  Law  of  Prop.  535); 
A.  G.  v.  Brettingham,  3  Beav.  91; 


Governor  of  St.  Thomas  Hospital 
v.  Charing  Cross  R.  Co.,  1  J.  &  H. 
400,  406;  and  cases  collected  in  14 
Beav.  120,  note. 

In  America,  owing  to  the  rapid 
changes  in  the  country,  the  power 
has  to  be  more  frequently  called 
into  requisition.  See  Stanley  t>. 
Colt,  5  Wall.  119;  Ould  v.  Wash- 
ington Hospital,  95  U.  S.  303;  Jones 
v.  Habersham,  107  U.  S.  174,  183; 
Odell  v.  Odell,  10  Allen,  1,  6;  Asy- 
lum v.  Lefebre,  69  N.  H.  238; 
Weeks  v.  Hobson,  150  Mass.  377; 
Amory  v.  A.  G.,  179  Mass.  89; 
Brown  v.  Meeting  St.  Soc.,  9  R.  I. 
177;  Brice  v.  All  Saints  Mem.  Cha- 
pel, 31  R.  1. 183;  Shotwell  v.  Mott,  2 
Sandf.  Ch.  46,  55;  Re  Mercer  Home, 
Fisher's  Appeal,  162  Pa.  232;  Lack- 
land v.  Walker,  151  Mo.  210;  Frank- 
lin t>.  Armfield,  2  Sneed,  305;  2 
Perry,  Trusts  (6th  ed.)  §  764.  For 
cases  under  statutes,  see  Wells  v. 
Heath,  10  Gray,  17,  27;  Dutch 
Church  v.  Mott,  7  Paige,  77,  84; 
Burton's  Appeal,  57  Pa.  213.  The 
only  case  on  either  side  of  the  At- 
lantic in  which  the  power  is  denied 
to  Courts  of  Equity  is  Tharp  v. 
Fleming,  1  Houst.  580. 

An  indefinite  power  of  sale  for 
change  of  investment  given  to  trus- 
tees is  good,  if  and  because  the 
power  is  destructible  by  cestuis  que 
trust  having  a  vested  equitable  in- 
terest within  the  limit  of  the  Rule 
against  Perpetuities,  see  §§  467  et 
seq.,  ante.  In  a  charitable  trust 
there  are  no  cestuis  que  trust,  and 
it  might  be  suggested  that  such 
a  power  would  be  too  remote  (cf. 
Foulke,  Treatise,  §421);  but  it 


474  THE  RULE  AGAINST  PERPETUITIES. 

creation  of  remote  future  interests.1  Now  while  it  is  true  that 
the  nature  of  charitable  trusts  makes  them  inalienable,  and 
therefore  perpetuities,  in  the  natural  sense  of  that  term,  it  is 
by  no  means  a  necessary  incident  of  charitable  trusts  that  they 
should  be  allowed  to  begin  in  the  remote  future;  or,  in  other 
words,  that  they  should  be  exempt  from  the  operation  of  the 
Rule  against  Perpetuities.  The  law  may  have  exempted  them, 
but  such  exemption  is  not  involved  in  the  conception  of  a 
charity.2 

§  592.  The  question  of  remoteness  may  present  itself  in  con- 
nection with  charitable  trusts  in  three  shapes:  A  gift  to  a 
charity  may  be  followed  by  a  remote  gift  to  an  individual; 
a  gift  to  an  individual  may  be  followed  by  a  remote  gift  to  a 
charity;  and  a  gift  to  a  charity  may  be  followed  by  a  remote 
gift  to  another  charity,  —  and  in  each  of  these  cases  there  may 
or  may  not  be  a  change  of  trustee.  So  that  we  have  six  typi- 
cal forms:  (1)  To  A.  on  a  charitable  trust,  —  on  a  remote  con- 
tingency to  B.  for  his  own  use.  (2)  To  A.  on  a  charitable 
trust,  —  on  a  remote  contingency  in  trust  for  B.  (3)  To  A. 
for  his  own  use,  —  on  a  remote  contingency  to  B.  on  a  chari- 
table trust.  (4)  To  A.  in  trust  for  B.,  —  on  a  remote  contin- 
gency on  a  charitable  trust.  (5)  To  A.  on  a  charitable  trust, 
—  on  a  remote  contingency  to  B.  on  another  charitable  trust. 
(6)  To  A.  on  a  charitable  trust,  —  on  a  remote  contingency 
on  another  charitable  trust. 

§  593.  In  the  first  two  cases,  where  the  gift  is  from  a  chari- 
table trust  over  to  or  for  an  individual,  the  gift  over  to  the  indi- 
vidual is  subject  to  the  Rule  against  Perpetuities.  This  has 
never  been  doubted.3 

would  probably  be  held  that  the  au-  had  been  known  as  the  Rule  against 

thority  to  act  for  and  represent  the  Remoteness,     its     real     character 

charity,  which  is  possessed  by  the  would   have   been    indicated,    and 

Legislature  and  the  Courts  in  this  much  confusion  avoided, 
matter,  might  be  given  to  the  trustee.  *  See  Philadelphia  v.  Girard,  45 

1  As  has  been  before  remarked,  Pa.  9,  26;  Yard's  Appeal,  64  Pa.  95; 

the  name  which  has  become  affixed  Challis,  Real  Prop.  (3d  ed.)  195. 
to  the  Rule  is  unfortunate;  if  it          *  In    re   Bowen,   [1893]    2  Ch. 


CHARITABLE   TRUSTS.  475 

§  594.  In  the  third  case,  where  the  gift  is  from  an  individ- 
ual over  to  a  corporation  or  person  on  a  charitable  trust,  it  is 
equally  well  settled  that  the  Rule  against  Perpetuities  applies.1 

§  595.  In  the  fourth  case,  where  a  trustee  who  holds  prop- 
erty in  trust  for  an  individual  is  directed,  on  the  happening  of 
&  remote  contingency,  to  hold  it  on  a  charitable  trust,  it  might 
be  contended  that  no  question  of  the  application  of  the  Rule 
against  Perpetuities  arises.  That  Rule  concerns  itself  with  the 
beginning,  not  with  the  end,  of  estates.2  There  is  therefore 
no  harm  in  the  equitable  estate  of  the  individual  ending  at  a 
remote  period.  There  is  no  change  in  the  legal  estate,  and  the 
only  matter  which  can  be  thought  obnoxious  to  the  Rule  against 
Perpetuities  is  that  the  charitable  trust  begins  at  a  remote 
period.  But  under  the  charitable  trust  no  one  has  any  rights, 
and  as  the  purpose  of  the  Rule  against  Perpetuities  is  to  pre- 
vent the  creation  of  remote  rights,  it  might  be  argued  that  the 
Rule  has  no  application. 

§  596.  But  the  better  opinion  certainly  seems  to  be  that  for 
the  purpose  of  deciding  questions  of  remoteness  a  charitable 
trust  must  be  considered  as  an  entity  which  can  be  subject  to 
a  condition  precedent.  This  question  came  before  Sir  E.  B. 
Sugden,  when  Lord  Chancellor  of  Ireland;  and  it  was  conceded 

491.    Merritt  v.  Bucknam,  77  Me.  Johnson's  Trusts,  L.  R.  2  Eq.  716. 

253.    Asylum  v.  Lefebre,  69  N.  H.  Merritt  v.  Bucknam,  77  Me.  253. 

238.    Brattle  Sq.  Church  v.  Grant,  Merrill  v.  Amer.  Baptist  Missionary 

3  Gray,  142.    Wells  v.  Heath,  10  Union,  73  N.  H.  414.    Leonard  v. 

Gray,   17.     Theological  Education  Burr,  18  N.  Y.  96,  107,  108.    Smith 

Soc.  v.  A.  G.,  135  Mass.  285.  Palmer  v.  Townsend,  32  Pa.  434.    See  In  re 

v.  Union  Bank,  17  R.  I.  627.    Brice  Bowen,    [1893]    2    Ch.   491,    494; 

v.  All  Saints  Mem.  Chapel,  31  R.  I.  Worthing  Corporation  v.  Heather, 

183.   Appeal  of  St.  Luke's  Church,  [1906]  2  Ch.  532.  Cf.  Pewterers  Co. 

1  Pa.  S.  C.  (Walker)  283.    Starr  t;.  v.  Christ's  Hospital,  1  Vern.   161, 

Starr  M.  P.  Church,  112  Md.  171.  which,  however,  was  not  a  case  of 

Re  Baillie,  7  N.  S.  Wales  State  Rep.  remoteness. 

265.    See  Odell  v.  Odell,  10  Allen,  So  a  gift  to  a  charity  on  a  future 

1,  7.     Cf.  In  re  Tyrrell's  Estate,  contingency,   without  any  preced- 

[1907],  1  I.  R.  194,  292.     But  see  ing  gift,  is  within  the  Rule  against 

$  603  i,  post.  Perpetuities,  §§  604  et  seq.,  post. 
1  A.  G.  v.  Gill,  2  P.  Wms.  369.  *  §§  232  et  seq.,  ante., 


476  THE   RULE   AGAINST  PERPETUITIES. 

by  counsel  and  decided  by  him  that  such  a  change  of  trust 
on  which  land  was  held  from  individuals  to  a  charity  was 
within  the  Rule  against  Perpetuities.1  Besides  it  will  appear  2 
that  a  charitable  trust  does  sometimes  vest  a  right  in  a  definite 
person. 

§  597.  The  first  four  cases,  therefore,  form  no  exceptions  to 
the  Rule  against  Perpetuities.  But  in  the  last  two  cases,  where 
the  change  is  from  one  charity  to  another,  it  seems  to  be  settled 
that  there  is  an  exception  to  the  Rule.3  In  Christ's  Hospital 
v.  Grainger  4  it  was  distinctly  ruled  that  a  direction  in  a  will 
that  on  a  contingency,  which  might  be  in  the  indefinite  future, 
a  legacy,  given  to  the  town  of  Reading  on  a  charitable  trust, 
should  be  transferred  to  the  city  of  London  on  another  chari- 
table trust,  was  good.  The  law  of  this  case  has  been  spoken  of 
with  approval  in  Odell  v.  Odell 5  and  Jones  v.  Habersham*  and 
has  been  followed  in  Storr's  Agricultural  School  v.  Whitney  7 
and  MacKenzie  v.  Trustees  of  Presbytery  of  Jersey  City,9  and 
so  are  the  text-books  generally.9 

§  598.  Although  this  case  of  Christ's  Hospital  v.  Grainger 
is  the  only  decision,  except  Storr's  Agricultural  School  v. 
Whitney  and  MacKenzie  v.  Trustees  of  Presbytery  of  Jersey 
City,  in  which  the  gift  of  a  legal  interest  to  be  held  on  a  char- 
itable trust  coming  after  a  prior  gift  of  the  legal  interest  to 
another  trustee  on  another  charitable  trust  has  been  held 

1  Commissioners  v.  De  Clifford,  7  54  Conn.  342.    See  also  Len- 

1  Dr.  &  W.  245,  254.  nig's  Estate,  154  Pa.   209;  In  re 

*  App.  A,  §§  680  et  seq.,  post.  John's  Will,  30  Oreg.  494,  512;  Re 

*  Where  there  is  no  change  of  Mountain,  26  Ont.  L.  R.  163. 
trustee  it  might  indeed  be  urged,  on  8  67  N.  J.  Eq.  652,  669. 

the  grounds  stated  above,  that  no  9  1  Jarm.  Wills   (6th   ed.)  367. 

question  of  remoteness  arises,  but  Theob.  Wills  (7th  ed.)  598.    Tud. 

the  reason  and  decision  given  in  the  Char.  (4th  ed.)  54.    Tud.  L.  C.  in 

preceding  section   seem   to   forbid  Real  Prop.  (4th  ed.)  616.    Marsden, 

this.     §§  595,  596,  ante.  Perp.   307.     Tyssen,    Char.    Beq., 

4  16  Sim.  83;  1  McN.  &  G.  460;  428.     Challis,  Real  Prop.  (3d  ed.) 

1  H.  &  Tw.  533.  195.    4  Kent,  Com.  (12th  ed.)  283, 

•  10  Allen,  1,  8,  9.  note  1.    Cf.  33  Am.  L.  Reg.  N.  8. 

•  107  U.  S.  174,  185.  63. 


CHARITABLE  TRUSTS.  477 

valid,1  and  although  the  case  where  there  is  no  change  of 
trustee  might  possibly  be  distinguished,  yet  the  decision  has 
stood  so  long  unquestioned  that  it  is  likely  to  be  followed. 

§  599.  But  in  any  jurisdiction  where  the  matter  is  not 
closed  by  authority  the  correctness  of  the  decision  in  Christ's 
Hospital  v.  Grainger  deserves  careful  consideration.  Lord 
Cottenham's  argument  was  as  follows:  "It  was  then  argued 
that  it  was  void  as  contrary  to  the  Rules  against  Perpetuities. 
These  Rules  are  to  prevent,  in  the  cases  to  which  they  apply, 
property  from  being  inalienable  beyond  certain  periods.  Is 
this  effect  produced,  and  are  these  Rules  invaded  by  the  trans- 
fer, in  a  certain  event,  of  property  from  one  charity  to  an- 
other? If  the  corporation  of  Reading  might  hold  the  property 
for  certain  charities  in  Reading,  why  may  not  the  corporation 
of  London  hold  it  for  the  charity  of  Christ's  Hospital  in  Lon- 
don? The  property  is  neither  more  nor  less  alienable  on  that 
account. "  2 

§  600.  But  here,  with  submission  to  so  great  an  author- 
ity, is  the  common  confusion  between  perpetuity  in  the  sense 
of  inalienability  and  perpetuity  in  the  sense  of  remoteness. 
Property  dedicated  to  a  charity  is  inalienable  necessarily;  but 
to  allow  a  gift  to  charity  to  commence  in  the  remote  future  is 
not  necessary;  and  the  object  of  the  Rule  against  Perpetuities 
is  to  restrain  the  creation  of  future  conditional  interests.3 

§  601.  If  a  remote  gift  to  a  charity  after  a  gift  to  another 
charity  is  good,  because  it  is  by  nature  inalienable,  then  a 
gift  to  a  charity  after  a  gift  to  an  individual  should  be  good; 
the  individual  can  alienate  the  whole  of  his  present  interest, 
and  the  remote  interest  is  no  more  and  no  less  inalienable 
than  when  limited  after  a  gift  to  another  charity.  Yet  after 
a  gift  to  an  individual  a  gift  to  a  charity  may  be  unquestion- 

1  In  the  earlier  case  of  Society  ferred  to  the  plaintiffs,  not  as  of 

for  the  Propagation  of  the  Gospel  right,  but  as  the  best  scheme  of 

v.  A.  G.,  3  Russ.  142,  no  question  carrying  out  the  trust. 
of  perpetuity  was  raised,  and  the  *  1  McN.  &  G.  464. 

property  seems  to  have  been  trans-  *  Chap.  VII.,  ante. 


478  THE  RULE  AGAINST  PERPETUITIES. 

ably  bad  for  remoteness.1    So  a  remote  gift  to  a  charity  with- 
out any  preceding  gift  at  all  is  too  remote.2 

§  603  a.  The  above  paragraphs  have  been  allowed  to  stand, 
for  the  most  part,  as  in  the  first  edition,  but  consideration  since 
that  time  has  suggested  some  doubt  as  to  their  entire  correct- 
ness. The  policy  of  the  Law  is  that  property  should  not  be 
taken  out  of  commerce.  Now  attempts  have  been  made  to  take 
property  out  of  commerce  in  two  ways:  first,  by  making  the 
interest  of  present  owners  inalienable;  secondly,  by  allowing 
interests  to  arise  on  future  contingencies,  beyond  the  control  of 
the  present  holders.  The  courts  have  met  the  first  attempt  by 
establishing  the  doctrine  that  all  restraints  on  the  alienation 
of  present  or  vested  interests  are  void;  they  have  met  the 
second  attempt  by  establishing  the  doctrine  that  future  interests 
must  arise  within  a  certain  time.  These  doctrines  are  distinct; 
a  present  owner  cannot  be  restrained  from  alienation,  even 
though  the  restraint  be  confined  to  lives  in  being,3  and  an  in- 
terest on  a  remote  contingency  is  not  rendered  good  by  such 
interest  being  alienable; 4  but  the  doctrines  are  both  offshoots 
of  the  same  principle,  and  when  that  principle  wholly  fails 
of  application,  it  may  be  said  that  they  both  fail  also;  that  in 
the  case  of  charities,  the  law  allows  land  and  other  property  to 
be  taken  out  of  commerce;  and  that  therefore  there  seems  to  be 
no  occasion  to  apply  the  Rule  against  Perpetuities. 

1  §§  594-596,  ante;  603  c,  post.          that  the  Court  may  order  the  ex- 

2  See  §§  604  et  seq.,  post.  ecutory  devisee  to  join  in  the  con- 
Suppose  land  is  devised  to  A.      veyance;  but  suppose  the  execu- 

upon  charitable  trusts,  with  an  ex-  tory  devise  over  is  to  a  person  who 
ecutory  devise  over  on  a  remote  will  not  be  ascertained  till  the  con- 
contingency  to  B.  upon  other  char-  tingency  happens,  e.  g.  to  one  who 
itable  trusts,  and  it  has  become  do  shall  then  be  president  of  a  college, 
eirable  to  sell  the  land  and  reinvest  Here  no  title  can  be  passed  until 
the  proceeds,  how  can  title  be  made?  the  contingency  occurs.  6  Harv. 
The  approval  of  a  Court  of  Equity  Law  Rev.  195;  7  Harv.  Law  Rev. 
will  extinguish  any  claim  by  the  406;  8  Harv.  Law  Rev.  211. 
Attorney  General  on  behalf  of  the  3  Gray,  Restraints  on  Aliena- 
charities;  but  the  legal  title  must  tion  (2d  ed.)  §§  45  et  seq. 
be  transferred.  It  may  be  said  *  Chap.  VII.,  ante. 


CHARITABLE   TRUSTS.  479 

§  603  6.'  Even  where  there  is  no  change  in  the  trustee  or  in 
the  object  of  the  trust,  the  application  of  the  trust  fund  often 
depends  upon  a  remote  contingency.  Thus  if  a  fund  be  estab- 
lished for  the  support  of  poor  widows,  there  must  be  poor 
widows  needing  support;  if  for  a  prize  for  the  best  essay  on  any 
subject,  the  essay  must  be  written;  if  for  the  support  of  the 
professor  of  chemistry  in  a  University,  the  chair  of  chemistry 
must  be  filled.  So  where  the  next  of  kin  of  the  founder  have 
a  right  to  a  scholarship  at  a  College,  the  next  of  kin  must  be 
a  candidate;  and  all  of  these  may  occur  and  will  be  occurring  at 
remote  periods.1 

§  603  c.  This  contention  leads,  however,  to  very  curious 
consequences.  In  re  Tyler2  was  to  this  effect:  T.  bequeathed 
to  the  Trustees  of  the  London  Missionary  Society  £42.000, 
and  committed  to  their  keeping  the  keys  of  his  family  vault, 
"the  same  to  be  kept  in  good  repair  and  name  legible,  and  to 
rebuild  when  it  shall  require:  failing  to  comply  with  this  re- 
quest, the  money  left  to  go  to  the  Blue  Coat  School,  Newgate 
Street,  London."  A  suit  was  brought  to  obtain  the  opinion  of 
the  Court,  whether  the  condition  for  keeping  up  the  vault  was 
valid  and  binding  on  the  said  Trustees.  The  Court  of  Appeal, 
affirming  the  decision  of  Stirling,  J.,  held  that  the  limitation 
over  to  the  Blue  Coat  School  was  valid;  that  a  provision  that 
part  of  the  fund  should  be  applied  to  the  repair  of  the  vault 
would  have  been  void,  since  such  repair  was  not  a  charity;  but 
that  there  was  nothing  illegal  in  repairing  a  vault;  and  that  a 
gift  over  from  one  charity  to  another  could  be  made  upon  this 
as  upon  any  other  contingency.3 

§  603  d.  Suppose  that  land  or  a  sum  of  money  is  given  to 
College  X.  on  condition  that  if  on  every  first  day  of  January  in 

1  That  provisions  for  the  kin  of  [1901]  1  I.  R.  394;  In  re  Barker,  25 

a  founder's  charity  are  good,  see  Times  L.  R.  753.  Cf.  an  article 

Dexter  v.  Harvard  College,  176  by  Mr.  Charles  Sweet,  18  Jurid. 

Mass.  192,  and  cases  there  cited.  Rev.  132,  140,  in  which  the  cor- 

*  [1891]  3  Ch.  252.  rectness  of  In  re  Tyler  is  doubted. 

1  See     Roche     v.    M'Dermott, 


480  THE   BULB  AGAINST  PERPETUITIES. 

every  year  the  college  does  not  pay  a  certain  amount  to  those 
persons  who  shall  then  be  the  heirs  of  the  donor,  the  land  or 
fund  shall  go  to  College  Y.  This  would  seem,  according  to 
In  re  Tyler,  to  be  a  good  limitation.  It  is  obvious  that  a  man 
may  in  this  way  make  a  perpetual  provision  for  his  family. 

§  603  e.  Further  if  a  remote  limitation  from  one  charity  to 
another  charity  is  good,  it  is  hard  to  see  why  a  remote  limita- 
tion from  a  charity  to  an  individual  should  be  void.  In  the 
latter  case  the  property  is  no  more  taken  out  of  commerce 
than  in  the  first  case;  on  the  contrary,  when  the  gift  over 
is  to  an  individual  there  is  a  chance  that  the  property  will 
at  some  time  come  into  commerce.  Yet  it  has  never  been 
doubted  that  a  limitation  from  a  charity  to  an  individual  is 
within  the  Rule  against  Perpetuities.1 

§  603  /.  And  this  suggests  that  the  wish  to  keep  land  or 
personal  property  in  commerce  is  not  the  sole  raison  d'etre  of 
the  Rule  against  Perpetuities.  This  reason  certainly  has  no 
great  force  in  the  case  of  a  trust  where  the  trustees  have  full 
power  to  change  investments,  or  to  a  case  where  there  is  a 
person  in  existence  who  can  transfer  or  release  a  remote  future 
interest,  and  yet  in  both  these  cases  the  rule  is  applied.  Is  it 
not  another  reason  that  when  the  ownership  in  property  is  in 
danger  of  being  lost  by  a  future  contingency  the  property  is  not 
likely  to  be  used  with  that  energy  and  interest  with  which  it 
would  be  used  if  it  were  a  man's  own? 2 

§  603  g.  These  considerations  apply  with  full  force  to  chari- 
ties. Property  is  devised  to  a  University  to  establish  a  Medical 
School.  It  will  greatly  diminish  the  motives  to  establish  and 
conduct  such  a  school,  to  found  professorships  and  build  labo- 
ratories, if  all  the  money  necessary  to  pay  the  professors  and 
maintain  the  laboratories  is  to  be  taken  from  the  University 
on  a  contingency,  especially  on  a  contingency  over  which  it 
may  have  no  control. 

§  603  h.  Whether   these    considerations   are    sufficient    to 

»  See  §§  593,  601,  ante.  *  See  §  268,  ante. 


CHARITABLE   TRUSTS.  481 

throw  doubt  on  the  correctness  or  wisdom  of  the  decision  in 
Christ's  Hospital  v.  Grainger  is  submitted  to  the  judgment 
of  the  learned  reader. 

§  603  L  The  law  (whether  wisely  or  not  may  be  questioned) 
has  allowed  property  to  be  given  on  terminable  charitable  trusts, 
to  which  the  doctrine  of  cy  pres  cannot  be  applied.  When  such 
a  trust  has  been  created,  there  is  a  resulting  trust  to  the  grantor 
or  to  the  testator's  heirs  or  next  of  kin  or  residuary  legatees 
upon  the  termination  of  the  charitable  trust.  This  resulting 
trust  is  a  vested  interest,  and  therefore  is  not  obnoxious  to  the 
Rule  against  Perpetuities.1  The  difference  between  such  a 
resulting  trust  and  an  executory  gift  divesting  a  charitable 
trust  is  well  brought  out  by  Stirling,  J.,  in  Re  Bowen,2  but  it 
must  be  admitted  that  from  an  economic  point  of  view  they  are 
much  alike,  and  there  is  no  ground  of  public  policy  which  con- 
demns one  that  does  not  condemn  the  other.  It  makes  no  differ- 
ence upon  the  taking  of  property  out  of  commerce  whether  a 
future  interest  is  to  the  donor  or  to  a  third  person.  As  an 
original  question  it  would  seem  to  have  been  well  if  determi- 
nable  charitable  trusts  had  been  inhibited  as  well  as  determi- 
nable  fees,  and  as  when  a  man  gives  property  to  A.  in  fee,  he 
must  give  it  to  him  forever,  so  when  he  gives  it  in  charity  he 
ought  to  be  obliged  to  give  it  forever.  But  the  law  seems 
settled  otherwise.3 

1  A.  G.  v.  Pyle,  1  Atk.  435.    Re          See  Re  Bowen,  [1893]  2  Ch.  491; 

Randell,  38  Ch.  D.  213.     Blunt's  First  Universalist  Soc.  v.  Boland, 

Trusts,  [1904]  2  Ch.  767.    Hopkins  155  Mass.  171;  Campbell  v.  City 

v.  Grimshaw,  165  U.  S.  342.    Brooks  of    Kansas,     102     Mo.     326;     Re 

v.  Belfast,  90  Me.  318.     Pond  v.  Baillic,  7  N.  S.  Wales  State  Rep. 

Douglass,    106    Me.    85.      Easter-  265;    Tyssen,    Char.    Beq.,     429- 

brooks  v.  Tillinghast,  5  Gray,  17.  431.     See   §§  40-41  a,   ante.     The 

Stone  v.  Framingham,   109  Mass,  validity  of   the  resulting  trust  is 

303.     Daniel  v.  Jacoway,   Freem.  not  affected  by  the  fact  that  there 

Ch.    (Miss.)    59.      Schlessinger    v.  is  an  express  gift  to  those  persons 

Mallard,  70  Cal.  326.     Jenkins  v.  to  whom  the  trust  would  result.    Re 

Jenkins  University,  17  Wash.  160.  Randell.    Blunt's  Trusts.     Stone  v. 

1  [1893]  2  Ch.  491,  494,  496.  Framingham.     Jenkins   v.  Jenkins 

1  See  §  312,  ante.  University.    See  Re  Bowen. 


482  THE   RULE  AGAINST  PERPETUITIES. 

§  604.  There  is  another  class  of  cases  which  must  be  con- 
sidered. An  executory  gift  to  a  charity  after  a  gift  to  an  in- 
dividual may  be  bad  for  remoteness.1  But  suppose  there  be 
a  gift  to  a  corporation  or  association  for  a  charitable  object, 
not  preceded  by  any  gift  to  an  individual,  and  that  the  corpo- 
ration or  association  is  not  in  existence,  —  is  the  gift  good? 

§  605.  If  a  gift  is  made  to  a  charity  on  a  contingent  event 
and  the  happening  of  the  event  is  a  condition  precedent  to 
the  gift,  then,  if  the  condition  is  too  remote,  or  for  any  other 
reason  illegal,  the  gift  to  the  charity  is  void.2 

§  606.  "If  the  gift  in  trust  for  charity  is  itself  conditional 
upon  a  future  and  uncertain  event,  it  is  subject,  in  our  judg- 
ment, to  the  same  rules  and  principles  as  any  other  estate 
depending  for  its  coming  into  existence  upon  a  condition  pre- 
cedent. If  the  condition  is  never  fulfilled,  the  estate  never 
arises;  if  it  is  so  remote  and  indefinite  as  to  transgress  the 
limits  of  time  prescribed  by  the  rules  of  law  against  perpetuities, 
the  gift  fails  ab  initio.  We  agree  with  what  was  said  by  the 
Master  of  the  Rolls  in  Cherry  v.  Mott3  that  'there  may  no 
doubt  be  a  conditional  legacy  to  a  charity  as  well  as  for  any 
other  purpose.'"  4 

§  606  a.  In  the  case  In  re  Stratheden6  a  testator  bequeathed 
"an  annuity  of  £100  to  be  provided  to  the  Central  London 
Rangers  on  the  appointment  of  the  next  lieutenant  colonel." 

1  §§  594-596,  ante.  318,  324;  Jocelyn  v.  Nott,  44  Conn. 

1  Cherry  v.  Mott,  1  Myl.  &  Cr.  55;  A.  G.  v.  Jolly,  2  Strob.  Eq.  379; 

123,  131,  132.    See  A.  G.  v.  Gould-  State  v.  Holmes,   115  Mich.  456; 

ing,  2  Bro.  C.  C.  428;  A.  G.  v.  Girard  Trust  Co.  v.  Russell,   179 

Bishop  of  Oxford,  cited  4  Ves.  431  Fed.  Rep.  446;  Carbery  v.  Cox,  3 

et  seq.',  A.  G.  v.  Whitchurch,  3  Ves.  Ir.  Ch.  231;  Suns  v,  Quinlan,  16  Ir. 

Jr.  141;  Corbyn  v.  French,  4  Ves.  Ch.  191;  17  Ir.  Ch.  43;  In  the  Will 

418;  De  Themmines  v.  Bonneval,  5  of  Nilen,  [19081  Viet.  L.  R.  332;  1 

Russ.  289;  Clark  v.  Taylor,  1  Drew.  Jarm.  Wills  (6th  ed.)  367;   Tud. 

642;  Re  Gyde,  79  L.  T.  R.  261,  over-  L.  C.  in  Real  Prop.  (4th  ed.)  688. 
ruling  B.  c.  78  L.  T.  R.  449;  In  re  •  1  Myl.  &  Cr.  132. 

White's  Trusts,  33  Ch.  D.  449;  In  *  Per    Lord    Selborne,    C.,    in 

re  Univ.  of  London  Medical  Sciences  Chamberlayne  v.  Brockett,  L.  R. 

Inst.  Fund  v.  A.  G.,  [1909]  2  Ch.  8  Ch.  206,  211. 
(C.  A.)  1;  Brooks  v.  Belfast,  90  Me.  •  [1894]  3  Ch.  265. 


CHARITABLE   TRUSTS.  483 

Homer,  J.,  held  that  this  was  a  charitable  bequest;  but  that  it 
was  void  because  conditioned  on  a  contingency  possibly  too- 
remote.  In  Kingham  v.  Kingham1  a  testator  bequeathed  to 
the  Trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  in  Ireland,  the  sum  of  £2,000,  for  the  erection  or  pur- 
chase of  a  building  in  Belfast  to  be  designated  the  Kingham 
Mission  Hall  for  Deaf  and  Dumb.  If  the  trustees  of  the 
Bethel  in  Sandy  Row,  in  Belfast,  would  sell  it  and  hand  over 
the  proceeds  to  the  Trustees  of  said  Assembly,  he  further  de- 
vised certain  land  to  said  Assembly  Trustees  to  assist  in  paying 
a  salary  to  a  missionary  to  be  appointed.  Chatterton,  V.  C., 
held  that  this  last  devise  was  too  remote. 

§  607.  If  the  Court,  however,  can  see  an  intention  to  make 
an  unconditional  gift  to  charity  (and  the  Court  is  very  keen- 
sighted  to  discover  this  intention),  then  the  gift  will  be  re- 
garded as  immediate,  not  subject  to  any  condition  precedent, 
and  therefore  not  within  the  scope  of  the  Rule  against  Perpetui- 
ties. The  mode  pointed  out  by  the  testator  is  only  one  way, 
though  the  preferable  way,"  of  carrying  out  the  charitable 
purpose;  and  if  it  cannot,  with  regard  to  the  general  chari- 
table intention,  be  carried  out  in  that  way,  it  will  be  carried 
out  cy  pres.  Thus  while  the  Court  will  allow  the  fund  to  be 
transferred  to  a  corporation  not  in  existence  at  the  time  of  the 
gift,  if  such  corporation  is  constituted  in  a  reasonable  time,  it 
will  not  recognize  the  right  of  such  non-existent  corporation 
to  keep  the  fund  locked  up  until  such  time  as  it  may  please 
itself  to  be  incorporated.  The  formation  of  the  corporation 
is  not  a  condition  precedent  to  the  charitable  trust,  and  there- 
fore the  trust  is  not  too  remote.  The  cases  where  charitable 
gifts  to  non-existent  corporations  or  societies  have  been  sus- 
tained are  numerous.2 

-  [1897]  1  I.  R.  170.  tin  v.  Margham,  14  Sim.  230.    Hen- 

1  A.  G.  v.  Bishop  of  Chester,  1  shaw  v.  Atkinson,  3  Mad.  396.    In 

Bro.  C.  C.  444.    A.  G.  t>.  Bowyer,  3  re  The  Clergy  Society,  2  K.  &  J. 

Ves.  Jr.  714,  727,  728.     Loscombe  615.    In  ris  Maguire,  L.  R.  9  Eq. 

v.  Wintringham,  13  Beav.  87.  A.  G.  632.     Sinnett  v.  Herbert,  L.  R.  7 

v.  Craven,    21    Beav.   392.     Mar-  Ch.  232.   Chamberlayne  v.  Brockett 


484 


THE    RULE   AGAINST   PERPETUITIES. 


§  608.   This  mode  of  treating  charitable  gifts  to  bodies  here- 
after to  be  incorporated  as  present  valid  gifts  depends  upon 

Wis.  257.  Harrington  v.  Pier,  105 
Wis.  485.  t  Schmidt  v.  Hess,  60 
Mo.  591.  Missouri  Hist.  Soc.  ». 
Academy  of  Science,  94  Mo.  459. 
Clayton  v.  Hallett,  30  Color.  231. 
In  re  Podmore,  6  Argus  L.  R.  (Vic- 
toria) 7.  See  In  re  Robinson,  [1892] 
1  Ch.  95;  Wentworth  v.  Fernald,  92 
Me.  282;  Sanderson  v.  White,  18 
Pick.  328;  Franklin's  Estate,  9  Pa. 
C.  C.  484;  Stevens's  Estate,  164  Pa. 
209;  Doughten  v.  Vandever,  5  Del. 
Ch.  51,  65;  Harper  v.  Central  Trust 
Co.,  11  Ohio  Dec.  240;  Heuser  v. 
Harris,  42  111.  425,  434;  Ingraham  v. 
Ingraham,  169  111.  432;  Cromie  v. 
Louisville  Orphans'  Home  Soc.,  3 
Bush,  365,  375;  Peynado  v.  Pey- 
nado,  82  Ky.  5;  Lilly  v.  Tobbein, 
103  Mo.  477;  Gidley  v.  Lovenberg, 
35  Tex.  Civ.  Ap.  203;  Estate  of 
Winchester,  133  Cal.  271;  Estate  of 
Merchant,  143  Cal.  537;  In  re 
John's  Will,  30  Oreg.  494,  512;  In 
re  Stewart's  Estate,  26  Wash.  32; 
Moule  v.  Overton,  16  N.  Z.  L.  R. 
106;  Tud.  L.  C.  in  Real  Prop.  (4th 
ed.)  688,  689;  1  Tiffany,  Real  Prop. 
§  159;  Foulke,  Treatise,  §  786.  See 
also  Re  Mountain,  26  Ont.  L.  R, 
163,  with  which  cf.  A.  G.  t;.  Bishop 
of  Chester,  ubi  sup. 

In  A.  G.  v.  Downing,  Wilm.  1; 
Dick.  414;  Ambl.  550,  571,  there 
was  a  gift  to  a  college  to  be  estab- 
lished. The  case  was  argued  before 
Lord  Northington,  C.,  assisted  by 
Sir  Thomas  Sewell,  M.  R.,  and 

tioned.  But  Bee  Russell  r.  Allen,  107  U.  S. 
163,  171. 

f  Any  dicta  to  the  contrary  in  Ruth  ». 
Oberbmnner,  40  Wis.  238;  Heiss  v.  Mur- 
phey.  Id.  276,  must  be  taken  to  have  been 
overruled,  as  must  also  the  case  of  Will  t. 
Fuller,  75  Wis.  431.  See  105  Wis.  510. 


L.  R.  8  Ch.  206,  211.  Re  Gyde, 
79  L.  T.  R.  261,  overruling  s.  c. 
78  L.  T.  R.  449.  In  re  Davis,  [1902] 
1  Ch.  876.  Wallis  v.  Sol.  Gen.  for 
New  Zealand,  [1903]  A.  C.  173.  In 
re  Swain,  [1905]  1  Ch.  669.  Inglis 
v.  Sailors'  Snug  Harbor,  3  Pet.  99. 
Ould  v.  Washington  Hospital,  1 
McArth.  541;  95  U.  S.  303,  313.* 
Russell  v.  Allen,  5  Dill.  235;  107 
U.  S.  163.  Jones  v.  Habersham, 
3  Woods,  443;  107  U.  S.  174,  190, 
191.  Field  v.  Drew,  41  Fed.  Rep. 
371.  Brigham  v.  Brigham  Hospital, 
126  Fed.  Rep.  796;  134  Fed.  Rep. 
513.  Tincher  v.  Arnold,  147  Fed. 
Rep.  665.  Swasey  v.  Am.  Bible 
Soc.,  57  Me.  523.  Dascomb  v. 
Marston,  80  Me.  223.  Odell  v. 
Odell,  10  Allen,  1,  7,  8.  Sherman 
v.  Cong.  Missionary  Soc.,  176  Mass. 
349.  Codman  v.  Brigham,  187 
Mass.  309.  Grimke  v.  A.  G.,  206 
Mass.  49.  Almy  v.  Jones,  17  R.  I. 
265.  Gumming  v.  Reid  Memorial 
Church,  64  Ga.  105.  Trustees  Mc- 
Intire  School  v.  Zanesville  Canal 
Co.,  9  Ohio,  203.  Williams  v.  First 
Presbyterian  Soc.,  1  Ohio  St.  478, 
500  et  seq.  Andrews  v.  Andrews,  110 
111.  223.  Crerar  v.  Williams,  145 
111.  625.  Franklin  v.  Hastings, 
253  111.  46.  Re  Taylor  Orphan 
Asylum,  36  Wia.  534.  Dodge  v. 
Williams,  46  Wis.  70.  Gould  v. 
Taylor  Orphan  Asylum,  Id.  106. 
Webster  v.  Morris,  66  Wis.  366, 
397.  Fadnesh  v.  Braunborg,  73 

*  In  Ould  «.  Washington  Hospital  the 
case  arose  in  the  District  of  Columbia, 
where  the  law  of  Maryland  is  in  force.  As 
the  doctrine  of  cy  pres  has  probably  never 
prevailed  in  Maryland,  see  $611,  post,  the 
correctness  of  the  decision  may  be  ques- 


CHARITABLE   TRUSTS. 


485 


the  doctrine  of  cy  pres.1    In  some  States,  however,  the  power 
to  administer  a  charitable  trust  cy  pres  is  declared  not  to  ex- 


Lord  Camden,  C.  J.;  and  again 
before  Lord  Camden,  C.,  assisted 
by  Sir  Thomas  Sewell  and  Wilmot, 
C.  J.  The  gift  was  decreed  to  be 
good.  The  brief  reports  in  Dickens 
and  Ambler  do  not  show  that  any 
objection  of  remoteness  was  raised; 
but  Lord  Chief  Justice  Wilmot  in 
his  Notes  gives  his  opinion  at 
length,  and  there  discusses  this 
objection.  He  says  the  gift  is  not 
too  remote,  because  the  King's 
b'cense  might  be  obtained  in  six 
months,  which  was  "greatly  within 
the  time  allowed  by  the  law  for  the 
expecting  executory  trusts  to  arise," 
viz.  "the  compass  of  a  life  or  lives." 
Wilm.  16, 17.  This  reasoning  would 
not  be  held  good  at  the  present  day. 
The  Rule  against  Perpetuities  was 
not  then  clearly  settled.  An  event 
which  by  possibility  may  happen 
at  a  distant  period  is  too  remote. 
Such  a  gift  would  now  be  sustained 
on  the  ground  stated  in  the  text, 
that  the  incorporation  of  the  col- 
lege was  not  a  condition  precedent. 
But  see  Inglis  v.  Sailors'  Snug 
Harbor,  3  Pet.  99,  115,  144;  Liter- 
ary Fund  v.  Dawson,  1  Rob.  (Va.) 
402,421;  §§616-618,  post. 

1  The  power  to  carry  out  a 
charitable  trust  cy  pres  must  not 
be  confounded  with  the  preroga- 
tive power  of  the  Crown.  Under 
the  latter,  when  property  has  been 
given  for  an  illegal  purpose,  or 
simply  to  charity,  without  the  in- 
dication to  any  trustee  or  of  any 
class  of  objects,  the  King,  as  parens 
patrice,  directs  the  application  of 
the  fund.  See  In  re  Pyne,  [1903]  1 
Ch.  83.  The  Court  declares  that 


the  property  is  to  be  applied  to 
charitable  uses,  and  reserves  it 
"until  his  Majesty's  pleasure  be 
known  in  what  manner  it  is  his 
will  the  same  shall  be  disposed  of." 
A.  G.  v.  Herrick,  Ambler,  712.  The 
application  to  the  King  for  the 
order  under  his  sign  manual  is 
properly  made  by  the  Attorney- 
General,  and  the  latter  is  directed  or 
recommended  by  the  Court  to  make 
it.  Moggridge  v.  Thackwell,  7  Ves. 
36,  61.  Da  Costa  v.  De  Pas,  Ambl. 
228.  Isaac  v.  Gomperte,  Ambl. 
228,  note.  Gary  v.  Abbot,  7  Ves. 
490,  497.  1  Seton,  Decrees  (3d 
ed.)  352.  But  apparently  it  may 
be  applied  for  by  any  one,  and 
granted  on  the  approval  of  the 
Attorney-General.  A.  G.  v.  Berry- 
man,  Dick.  168.  Da  Costa  v.  De 
Pas.  In  A.  G.  v.  Herrick  and  in 
A.  G.  v.  Peacock,  Finch,  245,  as 
reported  sub  nom.  A.  G.  v.  Mat- 
thews, 2  Lev.  167,  the  Lord  Chan- 
cellor himself  seems  to  have  brought 
the  matter  to  the  notice  of  the 
King;  but  this  has  not  been  the 
later  practice.  In  A.  G.  v.  Baxter, 
1  Vern.  248,  the  Court  proceed  to 
appoint  the  use  itself,  when  it 
clearly  should  have  waited  for  the 
order  under  the  sign  manual.  The 
order  under  the  sign  manual  is 
directed  to  the  Attorney-General, 
and  requires  him  to  make  a  mo- 
tion for  a  decree  disposing  of  the 
property  in  accordance  therewith. 
Da  Costa  v.  De  Pas.  A.  G.  v.  Ber- 
ryman.  Gary  v .  Abbot.  For  forms 
of  the  order  under  the  sign  manual, 
and  the  decree  made  thereon,  see 
Da  Costa  v.  De  Pas,  and  A,  G.  v. 


486 


THE   RULE   AGAINST   PERPETUITIES. 


ist;  and  therefore  gifts  to  corporations  not  in  being  are  void 
for  remoteness.  These  States  are,  or  were,  as  follows:  — 

§  609.  New  York.  —  Under  the  Revised  Statutes  no  power 
of  carrying  out  a  trust  cy  pres  existed  in  the  courts,  and  a  gift 
for  charitable  purposes  to  any  corporation  or  person  not  in 
being  at  the  date  of  the  gift  was  bad  for  remoteness.1  This  re- 
sult was  reached  only  after  great  fluctuation  of  judicial  opinion. 
But  it  is  fortunately  no  longer  necessary  to  refer  to  the  many 
conflicting  and  confusing  cases  on  this  point,  for  the  Court  of 
Appeals,  in  the  case  of  Allen  v.  Stevens,2  has  decided  that 
the  Statute  of  1893,  c.  701,  has  repealed  the  provisions  of  the 
Revised  Statutes,  so  far  as  they  touch  the  question  of  the  re- 
moteness of  gifts  for  charities,  and  has  restored  the  ancient 
law.8 

§  610.   Michigan,    Minnesota,    and    Wisconsin.  —  In    these 


Berryman.  An  order  under  the 
sign  manual  may  be  obtained  before 
any  proceedings  in  Court,  and  then 
on  the  Attorney-General's  informa- 
tion, setting  out  the  order,  the 
Court  will  make  a  complete  and 
final  decree,  ordering  the  disposition 
of  the  property  in  accordance  there- 
with. A.  G.  v.  Syderfen,  1  Vern. 
224;  s.  c.  7  Ves.  43,  note,  with  form 
of  decree.  This  prerogative  of  the 
Crown  is  not  a  judicial  power,  and  it 
is  universally  agreed  that  no  courts 
of  equity  in  the  United  States  pos- 
sess it.  4  Kent,  Com.  (12th  ed.)  508, 
note  1.  Jackson  v.  Phillips,  14 
Allen,  539,  574  et  seq. 

1  Bascom  v.  Nichols,  1  Redf. 
340;  sub  nom.  Bascom  v.  Albertson, 
34  N.  Y.  584.  Sherwood  v.  Am. 
Bible  Soc.,  1  Keyes,  561.  White 
v.  Howard,  46  N.  Y.  144. 

1  161  N.  Y.  122.  See  Matter  of 
Shattuck,  193  N.  Y.  446.  Cf.  Fra- 
lick  0.  Lyford,  107  N.  Y.  Ap.  D. 
643,  187  N.  Y.  524. 


1  The  Court  justly  says  (p.  140) 
that  the  provisions  of  the  Revised 
Statutes  have  produced  "nothing 
but  wrecks  of  original  charities, 
charities  that  were  dear  to  the 
hearts  of  their  would-be  founders, 
and  the  execution  of  which  would 
have  been  of  inestimable  value  to 
the  public." 

The  Revised  Statutes  of  New 
York  were  regarded  with  great 
complacency  and  admiration  at  the 
time  of  their  enactment,  but,  at 
least  on  the  subjects  of  trusts  and 
remote  limitations,  they  have  pro- 
duced a  woful  amount  of  confusion 
and  litigation.  §§748-750,  post. 
Gray,  Restraints  on  Alienation  (2d 
ed.),  App.  I.  It  would  be  a  great 
boon  to  the  courts  and  people  of 
New  York,  though  it  is,  perhaps, 
too  much  to  hope  for,  if  the  old 
law,  not  only  of  charitable  trusts, 
but  of  all  trusts  and  of  future 
estates  could  be  restored. 


CHARITABLE   TRUSTS.  487 

States  the  provisions  of  the  Revised  Statutes  of  New  York  have 
been  adopted  as  to  real  estate,  though  not  as  to  personalty.1 
In  Michigan  the  courts  have  followed  the  construction  given  to 
the  statutes  by  the  New  York  courts.2  So  in  Minnesota.3 
In  Wisconsin  the  question  is  undetermined.4 

§  611.  Maryland.  —  The  Courts  here  originally  rejected  the 
cy  pres  doctrine,  and  held  devises  for  charitable  purposes  to 
any  corporation  not  in  existence  at  the  date  of  the  gift  to  be 
bad.5  The  objection  seems  to  have  been  put  on  the  ground  of 
uncertainty  rather  than  remoteness.6  But  now,  by  Statute,7 
no  devise  or  bequest  for  any  charitable  uses  shall  be  held  void 
by  reason  of  any  uncertainty  with  respect  to  the  donees  thereof, 
if  the  will  shall  contain  "directions  for  the  formation  of  a 
corporation  to  take  the  same,"  and,  within  twelve  months  from 
the  probate  of  such  will,  a  "corporation  shall  be  formed,  in 
correspondence  with  such  directions,  capable,  and  willing  to 
receive  and  administer  such  devise  or  bequest."  The  Court  of 
Appeals  has  held  that,  under  this  Statute,  a  devise  to  trustees 
of  land  to  be  held  for  the  object  and  purposes  of  a  home  for  des- 

1  See  §  751,  post.  v.  Washington,  1  McArth.  541;  95 
1  Methodist    Church    v.   Clark,  U.  S.  303,  313;  §607,  note,  ante. 
41  Mich.  730.    State  v.  Holmes,  115  It  has  been  contended  that  the  pro- 
Mich.  356.     Trusts  for  charitable  vision  in  the  Bill  of  Rights  (Md. 
purposes    are    void    in    Michigan,  Const,  of  1867,  Bill  of  Rights,  Art. 
apart  from  any  question  of  per-  38)  that  all  gifts  of  land  or  devises 
petuity.    Hopkins  v.  Crossley,  132  or  bequests  for  religious  purposes, 
Mich.  612.  "without  the  prior,  or  subsequent, 
8  Little   v .  Willford,  31    Minn.  sanction  of  the  Legislature,  shall  be 
173.    Atwater  v.  Russell,  49  Minn.  void,"  renders  such  gifts,  devises, 
22,  57.     But  see  Mum.  Gen.  Sts.  and  bequests  void,   as  dependent 
(1894),  §  3048.  upon   a   remote   contingency,   but 
4  Harrington  v.   Pier,  105  Wis.  the   courts   have    decided   against 
485,  494.    See  Hood  v.  Dover,  107  this  contention.    England  v .  Prince 
Wis.  149.  George's     Parish,     53     Md.     466. 
6  State  v.  Warren,  28  Md.  388.  Church    Extension    v.  Smith,    ubi 
8  Needles    v.   Martin,   33    Md.  sup.    Bennett  v.  Methodist  Episco- 
609.     Church  Extension  v.  Smith,  pal  Church,  66  Md.  36. 
56  Md.  362.    Barnum  v.  Baltimore,  7  St.  of  1888,  Ch.  249;  2  Md. 
62  Md.  275.     Maught  v.  Getzen-  Pub.  Laws  (1904),  Art.  93,  §  322. 
danner,  65  Md.  527.    But  cf.  Ould 


488  THE   BULB   AGAINST  PERPETUITIES. 

titute,  aged,  and  infirm  women,  with  a  direction  that  the  trus- 
tees might,  if  they  judged  it  best,  become  a  body  corporate, 
either  under  a  special  charter  or  under  the  general  laws,  was 
good.1 

§  612.  Alabama.  —  It  would  rather  seem  from  the  language 
in  Cater  v.  Balfour 2  that  a  charitable  devise  to  a  corporation 
not  in  being  would  not  be  good  in  Alabama.3 

§  613.  Tennessee.  —  In  this  State  it  seems  that  a  gift  to  a 
corporation  not  in  being  cannot  be  sustained.4 

§  614.  Indiana.  —  The  doctrine  of  cy  pres  is  repudiated  in 
Indiana.5  In  that  State,  therefore,  it  is  presumed,  a  chari- 
table gift  to  a  corporation  not  hi  being  would  be  void  for 
remoteness. 

§  615.  But  although  the  disallowance  of  charitable  gifts  to 
corporations  not  in  being  seems  to  be  the  logical  consequence 
of  repudiating  the  doctrine  of  cy  pres,  yet  there  are  some 
States  whose  courts  repudiate  the  doctrine  of  cy  pres,  and  yet 
support  charitable  gifts  to  corporations  not  in  existence,  or 
not  having  the  necessary  powers  at  the  time  of  the  gift. 

§  616.  Virginia.  —  In  Virginia  the  doctrine  of  cy  pres  does 
not  exist.6  But  in  Literary  Fund  v.  Dawson 7  a  testator 

1  Chase  v.  Stockett,  72  Md.  235.  Wheat.  1;  Gallego  v.  A.  G.,  3  Leigh, 

As  to  the  extraordinary  doctrine  450;  Janey  v.  Latane,  4  Leigh,  327; 

held  in  Maryland,  that  while  a  gift  Wheeler  v.  Smith,  9  How.  55; 

to  a  charitable  corporation  is  good,  Seaburn  v.  Seaburn,  15  Grat.  423; 

a  gift  to  trustees  in  trust  for  a  char-  Kelly  v.  Love,  20  Grat.  124;  Kain 

Stable  corporation  is  bad,  see  Mis-  v.  Gibboney,  101  U.  S.  362.  The 

sionary  Soc.  v.  Humphreys,  91  Md.  previous  decisions  on  the  Virginia 

131;  §  245  c  (7),  ante.  law  were  disapproved,  if  not  over- 

1  19  Ala.  814,  830.  ruled,  and  the  doctrine  of  cy  pres 

*  But  see  Williams  ».  Pearson,  favored,  if  not  established,  in  Prot- 
38  Ala.  299.     Cf.  Burke  v.  Roper,  estant    Episcopal    Education    Soc. 
79  Ala.  138,  143.  v.   Churchman,    80   Va.   718,   and 

4  See  Green  v.  Allen,  5  Humph.  Trustees  v.  Guthrie,   86  Va.   125, 

170;    Dickson   v.    Montgomery,    1  but  these  two  cases  have  been  in 

Swan,  348;  White  v.  Hale,  2  Coldw.  their   turn   condemned   by   Fifield 

77;  Rhodes  v.  Rhodes,  88  Tenn.637.  v.  Van  Wyck,  94  Va.  557,  and  the 

*  Grimes    v.   Harmon,   35    Ind.  existence  of  the  doctrine  of  cy  pres 
198.  in  Virginia  has  been  again  denied. 

8  See    Baptist  Ass.    v.  Hart,  4  7  10  Leigh,  147. 


CHARITABLE   TRUSTS.  489 

directed  that  certain  property  should  be  used  by  his  execu- 
tors "in  constituting  a  part  of  the  Literary  Fund  of  the  State" 
for  certain  purposes,  and  added:  "An  Act  of  Assembly  for  said 
object  supposed  can  be  obtained."  The  Literary  Fund  was  a 
corporation,  but  it  had  no  authority  to  employ  money  for  the 
purposes  indicated  by  the  testator.  The  Court  of  Appeals 
decided  that  the  executors  held  the  fund  in  trust  to  procure 
an  Act  of  Assembly  authorizing  the  Literary  Fund  to  receive 
it.  The  Court  met  the  objection  of  remoteness,  which  had 
been  raised,  by  saying  that,  as  the  executors  were  to  procure 
the  Act,  it  would  be  procured  during  lives  in  being. 

§  617.  Afterwards  an  Act  of  Assembly  was  passed  author- 
izing the  Literary  Fund  to  take  the  gift;  but  the  executors 
objected  to  the  Fund  taking  it,  because  the  Act  had  been 
passed  without  their  consent  and  against  their  wishes.  The 
Court  of  Appeals  held  that  their  consent  was  unnecessary. 
This,  however,  knocked  the  ground  from  under  the  position 
which  the  Court  had  relied  on  to  meet  the  objection  of  remote- 
ness. For  if  the  consent  of  the  executors  was  unnecessary, 
then  the  Act  of  Assembly  need  not  be  passed  in  their  life- 
time. The  Court  was,  therefore,  obliged  to  find  a  new  reason 
for  supporting  the  gift,  and  they  now  said  that  it  was  the 
implied  intention  of  the  testator  that  the  Act  should  be  pro- 
cured within  a  reasonable  time,  and  that  whatever  such  rea- 
sonable time  might  be,  it  certainly  did  not  exceed  the  limit 
fixed  by  the  Rule  against  Perpetuities.1 

§  618.  It  is  to  be  observed  that  this  decision  imports  into  the 
will,  as  a  condition  precedent  of  the  gift,  that  the  Legislature 

1  Literary   Fund   v.  Dawson,   1  able  time,'   could  any  one  doubt 

Rob.  402,  421,  422,  429,  430,  434.  that  the  devise  would  have  been 

"I  think  it  clear  that  it  was  the  defeated  by  an  unreasonable  delay 

testator's  intention  the  Legislature  hi  the  passage  of  a  law?    And  yet 

should  act  upon  the  subject  in  a  how  can  it  be  supposed  that  his 

reasonable  time.    If,  when  he  said  meaning   was   otherwise?   and   'to 

'an  Act  of  Assembly  for  said  ob-  attain  the  intent'  shall  not  'impli- 

ject  supposed  can  be  obtained,'  he  cation  supply  verbal  omissions'?" 

had  added  the  words,  'in  a  reason-  1  Rob.  421,  422. 


490  THE   RULE   AGAINST   PERPETUITIES. 

shall  act  within  a  reasonable  time,  and  imputes  to  the  testa- 
tor the  intention  that  if  it  does  not  act  within  such  reasonable 
time  the  charitable  gift  shall  be  void.  Surely  a  somewhat 
violent  implication.  One  may  doubt  whether  it  would  have 
commended  itself  to  the  learned  Court,  unless  it  had  been  a 
means  of  escaping  from  the  fetters  in  which  early  decisions 
have  confined  the  judicial  administration  of  charitable  trusts 
in  Virginia.1 

§  619.  West  Virginia.  —  The  Virginia  decisions  repudiating 
the  doctrine  of  cy  pres  are  followed  in  this  State.2 

§  620.  North  Carolina.  —  In  North  Carolina  the  doctrine  of 
cy  pres  appears  to  be  denied.3  The  following  passage  4  sug- 
gests that  the  same  device  may  be  adopted  to  sustain  a  chari- 
table gift  to  a  corporation  not  in  being  as  is  employed  in 
Virginia:  "A  bequest  for  religious  charity  must,  like  others, 
be  to  some  definite  purpose,  and  to  some  body  or  association 
of  persons,  having  a  legal  existence,  and  with  capacity  to 
take.  Or,  at  the  least,  it  must  be  to  some  such  body,  on  which 
the  Legislature  shall,  within  a  reasonable  time,  confer  a  ca- 
pacity to  take."  8 

§  621.  Connecticut.  —  There  was  a  Statute  in  this  State, 
passed  in  1784,  which  provided  that  "no  estate  in  fee  simple, 
fee  tail,  or  any  less  estate,  shall  be  given,  by  deed  or  will,  to 
any  persons  but  such  as  are,  at  the  time  of  making  such  deed 
or  will,  in  being,  or  to  their  immediate  issue  or  descendants."  • 
This  statute  was  amended  in  1884,7  by  substituting  for  "mak- 
ing such  deed  or  will,"  the  words  "the  delivery  of  such  deed 

1  It  has  been  followed  in  Kin-  Ired.  Eq.  19.    Bridges  v.  Pleasants, 

naird  v.  Miller,  25  Grat.  107.  Id.  26.    (But  see  Griffin  v.  Graham, 

3  Carpenter    v.    Miller,    3    W.  1  Hawks,  96;  Miller  ».  Atkinson, 

Va.  174.    Bible  Soc.  v.  Pendleton,  63  N.  C.  537.) 

7  W.  Va.  79.    Mong  v.  Roush,  29  4  Bridges   ».    Pleasants,  4  Ired. 

W.  Va.  119.    Wilmoth  v.  Wilmoth,  Eq.  30. 

34  W.  Va.  426.     Pack  v.  Shanklin,  *  And  see  Griffin  v.  Graham  and 

43  W.  Va.  304.  Miller  v.  Atkinson,  ubi  sup. 

1  McAuley   v.  Wilson,   1    Dev.  •  Conn.    Gen.     Sts.     (Rev.    of 

Eq.  276.    Holland  v.  Peck,  2  Ired.  1875),  tit.  18,  c.  6,  pt.  1,  §  3. 

Eq.  255.     White  v.  University,  4  7  Conn.  St.  1884,  c.  87. 


CHARITABLE   TRUSTS.  491 

or  the  death  of  the  testator."  In  the  revision  of  the  Probate 
Laws,  made  in  1885,1  the  following  clause  was  inserted:  "No 
devise  of  any  estate,  except  for  public  and  charitable  uses,  or 
for  the  care  of  cemeteries  or  graves,  shall  be  made  to  any  persons, 
but  such  as  are  at  the  time  of  the  death  of  the  testator  in 
being,  or  to  their  immediate  issue  or  descendants."  Both 
the  Statute  of  1784,  as  amended  in  1884,  and  the  Statute  of 
1885  were  incorporated  in  the  General  Statutes  of  1888; 2 
but  both  were  repealed  in  1895  ;3  so  that  the  common  law 
on  the  subject  of  remoteness  is  now  restored  in  Connecticut.4 
A  statute  passed  originally  in  1684 5  provided  that  "  all 
estates  that  have  been  or  shall  be  granted  for  the  main- 
tenance of  the  ministry  of  the  gospel,  or  of  schools  of  learning, 
or  for  the  relief  of  the  poor,  or  for  any  other  public  and  chari- 
table use,  shall  forever  remain  to  the  uses  to  which  they  have 
been  or  shall  be  granted,  according  to  the  true  intent  and  mean- 
ing of  the  grantor,  and  to  no  other  use  whatever." ' 

The  doctrine  of  cy  pres  was  formerly  held  not  to  be  in  force 
in  Connecticut.7  But  in  Coit  v.  Comstock  8  (1883)  there  was  a 
devise  to  trustees  to  receive  the  rents  and  income  "until  an  act 
of  incorporation  can  be  obtained  from  the  General  Assembly  of 
the  State  of  Connecticut,  by  the  name  of  the  Smith  Memorial 
Home,  .  .  .  and  to  convey,  tranfer,  assign  and  deliver  the 

1  Conn.  St.  1885,  c.  110,  §  130.         any  cemetery,  cemetery  lot,  or  of 

*  Conn.     Gen.    Sts.     (Rev.    of      the  monuments  therein,"  and  the 
1888),  §§  2952,  537.  St.  of  1684,  with  the  incorporation 

1  Conn.  St.  1895,  c.  249.  of  the  St.  of  1885,  c.  36,  was  re- 

4  And  it  has  now  been  held  enacted  in  the  Gen.  Sts.  (Rev.  of 

that  even  before  the  repeal  of  the  1888),  §  2951.     Gen.  Sts.  (Rev.  of 

statutes,    charitable    devises    were  1902),  §  4026. 

not  within  them,  but  only  within  7  White   v.  Fisk,  22   Conn.  31. 

the  common-law  Rule  against  Per-  Hughes  v.  Daly,  49  Conn.  34.    Fair- 

petuities.    Pendleton  v.  Kinney,  65  field    v .    Lawson,    50    Conn.    501. 

Conn.  222.  Bristol  v.  Bristol,  53  Conn.  242. 

4  See  Conn.  Gen.  Sts.  (Rev.  of  See  Treat's  Appeal,  30  Conn.  113; 

1875),  p.  352,  note.  Adye    v.    Smith,    44    Conn.    60; 

•  By  St.  of  1885,  c.  36,  a  like  Dailey  v.  New  Haven,  60  Conn, 
provision  was  made  as  to  estates  314. 

granted  for  the   "maintenance  of  8  51  Conn.  352. 


492  THE   RULE   AGAINST  PERPETUITIES. 

said  trust  fund,  with  its  accumulations,  to  the  corporation 
created  by  such  act,  as  soon  as  such  corporation  shall  be  duly 
organized.  The  purpose  and  object  of  this  bequest  is  the 
founding  of  a  home  for  aged,  respectable,  indigent  women,  who 
have  been  residents  of  the  City  of  New  London,  under  such 
regulations  as  may  be  prescribed  or  provided  by  such  act  of 
incorporation."  After  the  testator's  death  the  Smith  Memo- 
rial Home  was  incorporated.  The  Court  of  Errors  held  that 
it  was  entitled  to  the  devise. 

§  622.  However  desirable  it  may  have  been  to  reach  this 
conclusion,  the  mode  taken  to  reach  it  is  not  clear.  In  Jocelyn 
v.  Nott,1  where  a  gift  to  a  charity  was  held  void  as  subject  to 
a  remote  condition  precedent,2  the  Court  say:  "The  fact  that 
this  may  be  regarded  as  a  charitable  devise  does  not  exempt 
it  from  the  operation  of  the  Rule  [against  Perpetuities].  The 
Common-Law  Rule  and  our  own  Statute  are  without  exception. 
All  devises  or  grants,  whether  for  charitable  uses,  or  other- 
wise, must  vest,  if  they  vest  at  all,  within  the  time  limited. 
The  devise  in  the  present  case  is  vested  only  in  the  trustees, 
and  no  interest  whatever  has  as  yet  vested  in  the  party  in- 
tended to  be  benefited." 

§623.  The  Court  in  Coit  v.  Comstock  say:  "It  is  clear, 
therefore,  that  a  reasonable  time  only  for  the  act  to  be  ob- 
tained was  contemplated  by  the  testator."  3  But  (1)  the  Con- 
necticut Statute 4  then  in  force  provided  that  no  estate  should 
be  given  by  will 5  except  to  persons  in  being,  or  their  im- 
mediate issue  or  descendants;  and  (2)  to  support  incorpora- 
tion within  a  reasonable  time,  as  a  condition  precedent  of  the 
devise,  required  the  imputation  to  the  testator  of  the  inten- 
tion that  if  the  incorporation  was  not  had  within  a  reason- 
able time  the  gift  should  be  void.6  This  conclusion,  how- 
ever, the  Court  avoid;  they  say:  "What  would  have  become 
of  the  property  if  an  act  of  incorporation  had  not  been 

*  44  Conn.  55.  «  §  621,  ante. 

1  See  §§  605,  606,  ante.  •  But  see  §  624  a,  post. 

»  51  Conn.  383.  •  See  §  618,  ante. 


CHARITABLE   TRUSTS.  493 

procured  within  such  reasonable  time,  it  is  not  necessary  to 
consider."  1 

§  624.  Still  more  difficult  is  "another  view  of  this  question," 
which  the  Court  take:  "The  testator,"  they  say,  "in  this  be- 
quest declares  his  object  and  purpose  to  be  the  founding  of  a 
home  for  the  aged,  &c.,  which  should  endure  forever.  He 
realized  that  men  must  die,  but  corporations  never  die.  He  de- 
sired, therefore,  to  have  the  charity  under  the  management  and 
administration  of  a  corporation  that  should  endure  as  long  as 
the  home  should  exist.  To  carry  out  this  object  he  gives  the 
property  to  his  executors,  to  be  transferred  to  the  corporation 
as  soon  as  it  should  be  chartered  and  organized.  The  instru- 
mentality of  the  executors  was  employed  merely  to  pass  the 
title  to  the  corporation.  Nothing  is  said  in  the  will  as  to  the 
beneficial  interest  in  the  property  becoming  vested  in  the  bene- 
ficiaries when  the  property  should  be  conveyed  to  the  corpora- 
tion. It  became  vested  in  them  on  the  death  of  the  testator 
liable  to  be  divested  if  a  corporation  should  not  be  organized 
within  a  reasonable  time  under  all  the  circumstances.  There 
is  no  room  for  claiming  that  the  property  did  not  vest  till  the 
conveyance  should  be  made  to  the  corporation.  The  charity 
could  not  be  administered  till  then,  but  its  administration  had 
nothing  to  do  with  the  vesting  of  the  property,  any  more  than 
the  possession  of  property  by  a  devisee  has  to  do  with  the  vest- 
ing of  the  same  in  him.  Reversionary  interests  vest  in  a  party 
when  the  possession  of  the  property  is  in  another.  So  here, 
the  property  became  vested  on  the  death  of  the  testator,  but 
the  time  when  the  beneficiaries  should  enjoy  the  charity  was 
deferred  till  the  corporation  should  become  organized  and  the 
property  conveyed."  There  was  certainly  here  an  immediate 
intention  to  devote  to  charity,  which,  if  it  could  not  be  carried 
out  precisely  as  directed,  could  be  carried  out  cy  pres;  but  to 
repudiate  the  doctrine  of  cy  pres,  and  to  say  that  all  respectable 
old  women  who  had  lived  in  New  London,  or  should  live  there 
to  the  end  of  the  world,  and  who  should  be  designated  by  a 
1  51  Conn.  384.  See  Tappan's  Appeal,  52  Conn.  412. 


494  THE   RULE   AGAINST   PERPETUITIES. 

non-existent  corporation,  had  a  vested  interest  at  the  death  of 
the  testator  is,  it  is  submitted,  playing  with  words.1  It  would 
have  been  better  to  say  frankly  that  the  Court  had  erred  in 
repudiating  the  doctrine  of  cy  pres.* 

§  624  a.  By  a  statute  passed  in  1880,3  where  land  is  held 
under  a  trust  created  by  deed,  and  the  execution  of  the  trust 
in  exact  accordance  with  the  terms  of  the  deed  is  impossible 
or  must  necessarily  fail  to  secure  the  objects  manifestly  intended 
by  the  grantor,  the  Superior  Court  may  order  the  sale  of  the 
land  and  the  investment  of  the  proceeds,  for  the  benefit  of  the 
party  beneficially  interested  in  such  manner  as  the  Court  "may 
deem  the  most  proper  to  secure  the  object  for  which  said  trust 
was  originally  created,  as  near  as  may  be,  according  to  the  in- 
tent of  the  original  grantor  appearing  in  the  original  deed."  In 
Woodruff  v.  Marsh*  (1893)  Baldwin,  J.,  says:  "Whether  .  .  . 
the  equitable  jurisdiction  of  the  Superior  Court,  which  has  been 
thus  expressly  authorized  to  apply  the  cy  pres  doctrine  to  trusts 
created  by  deed,  ought  not  to  be  now  deemed  to  include  author- 
ity to  deal  in  the  same  manner  with  charitable  trusts  created 
by  will,  it  is  unnecessary  to  determine  in  the  present  case."  One 
may  perhaps  anticipate  that  when  the  question  is  presented  for 
determination,  the  Supreme  Court  of  Errors  may  see  their  way 
to  place  the  desirable  conclusion  reached  in  such  a  case  as  Coit 
v.  Comstock  upon  the  doctrine  of  cy  pres  rather  than  on  the 
questionable  reasoning  of  that  case.5 

§  625.  Iowa.  —  It  has  been  said  in  Iowa  that  the  doctrine 
of  cy  pres  is  not  there  in  force;  nevertheless,  a  devise  to  a  cor- 
poration to  be  organized  is  good.6  The  objection  of  remoteness 

1  See  White  v.  Howard,  38  Conn.  »  St.  of  1880,  c.  42;  Conn.  Gen. 

342.  Sta.    (Rev.  of   1888),  §778.     Gen. 

1  See  Tappan's  Appeal,  52  Conn.  Sts.  (Rev.  of  1902),  §  1034. 

412;  Goodrich's  Appeal,  57  Conn.  *  63  Conn.  125,  136. 

275;  New  Haven  Young  Men's  In-  *  See  Eliot's  Appeal,  74  Conn, 

stitute  v.  New  Haven,  60  Conn.  32;  586;   Duggan  v.   Slocum,   83  Fed. 

Woodruff  v.  Marsh,  63  Conn.  125.  Rep.  244. 

Cf .  Belfield  v.  Booth,  63  Conn.  299;  •  Miller  v.  Chittenden,  2  Iowa, 

§§  214  b,  et  seq.,  ante.  315;  4  Iowa,  252.     See  Johnson  v. 


CHARITABLE    TRUSTS. 


495 


does  not  seem  to  have  occurred  to  the  Court.  The  same  criti- 
cism can  be  made  on  the  Iowa  cases  as  on  those  in  Virginia 
and  Connecticut.1 

§  626.  That  a  charitable  gift  to  a  corporation  not  in  esse  is 
good  has  long  been  accepted  doctrine  in  Pennsylvania.2  In 
Zeisweiss  v.  James 3  a  devise  to  "the  Infidel  Society  in  Phila- 
delphia hereafter  to  be  incorporated,  and  to  be  held  and  dis- 
posed of  by  them  for  the  purpose  of  building  a  hall  for  the  free 
discussion  of  religion,  politics,  &c./'  was  held  bad.  The  objec- 
tion to  the  devise  would  seem  to  have  been,  not  that  it  was  to 
a  corporation  not  in  esse,  but  that  it  was  not  charitable.4 

§  626  a.  If  there  was  any  doubt  as  to  the  existence  in 
Pennsylvania  of  the  doctrine  of  cy  pres  or  as  to  the  validity  of 
a  devise  for  a  charitable  purpose  to  a  corporation  not  in  esse,  it 
is  removed  by  recent  statutes  which  establish  the  doctrine  of 
cy  pres  in  a  very  broad  form.5 


Mayne,  4  Iowa,  180;  Byers  v.  Mc- 
Cartney, 62  Iowa,  339.  But  cf. 
Phillips  v.  Harrow,  93  Iowa,  92. 

1  §§  615-624,  ante. 

1  Witman  v.  Lex,  17  S.  &  R.  88, 
93.  See  Foulke,  Treatise,  §§766- 
781,  786. 

•  63  Pa.  465. 

4  The  "building  a  hall  for  the 
free  discussion  of  religion,  politics, 
&c."  seems  hardly  to  come  within 
any  of  the  definitions  of  a  charity, 
even  if  the  hall  be  not  regarded, 
as  it  was  by  the  Supreme  Court  of 
Pennsylvania,  as  "a  nursery  of  vice, 
a  school  of  preparation  to  qualify 
young  men  for  the  gallows  and  young 
women  for  the  brothel."  63  Pa.  471. 

Cf.  Knight's  Estate,  159  Pa. 
500;  Cowan  v.  Milbourn,  L.  R.  2 
Ex.  230;  Pringle  v.  Napanee,  43 
U.  C.  Q.  B.  285;  Kinsey  v.  Kinsey, 
26  Ont.  99;  In  re  Jones,  [1907]  South 
Aust.  L.  R.  190;  Tyssen,  Char. 
Beq.,  114. 


The  last  sentence  of  this  section 
originally  read:  "The  objection  to 
the  devise  was  not,"  &c.  The  au- 
thor's learned  friend,  the  late  Ar- 
thur Biddle,  Esq.,  of  the  Philadel- 
phia bar,  pointed  out  to  him,  that 
this  might  be  taken  as  expressing 
not  merely  the  opinion  of  the  au- 
thor, but  that  of  Sharswood,  C.  J., 
who  delivered  the  opinion  in  Zeis- 
weiss v.  James,  and  that,  if  so  taken, 
the  statement  was  not  correct.  The 
criticism  was  just,  and  the  expres- 
sion has  been  changed.  But  it 
does  not  seem  likely  that  the  Chief 
Justice  would  have  considered  a 
bequest  to  a  corporation  not  in 
esse  as  void,  if  there  was  an  in- 
tention to  devote  immediately  to 
charity.  Fortunately  the  Statutes 
mentioned  in  the  next  section  have 
probably  settled  the  question. 

*  Brightly  Purd.  Dig.  (ed.  1894), 
p.  302.  Suppl.  1895,  p.  2536.  See 
Pepper's  Estate,  11  Pa.  C.  C.  257; 


496  THE   RULE   AGAINST  PERPETUITIES. 

§  627.  In  England  it  has  been  not  uncommon  to  give  ad- 
vowsons  to  trustees  in  trust  to  appoint  clergy  of  particular 
opinions  and  no  others.  A  sale  of  these  advowsons  would  be 
a  breach  of  trust  on  the  part  of  the  trustees.  They  are  accord- 
ingly inalienable.  It  has  been  assumed  that  such  gifts  are 
good;  but  Mr.  Lewis  points  out,  with  great  force,  that  they  can 
be  good  only  as  charitable  gifts,  and  that  they  are  not  charita- 
ble.1 This  question,  however,  concerns  the  inalienability  of 
present  estates,  and  not  the  creation  of  future  estates,  and  has 
therefore  no  real  place  in  this  treatise.2 

§  628.  Provisions  directing  accumulations  for  charitable 
trusts  are  discussed  in  the  chapter  on  Accumulations.3 

Lewis's  Estate,  Id.  561;  Lennig's  6D.&  R.  517;  A.  G.v.  Webster,  L.R. 

Estate,  154  Pa.  209.    But  cf.  Hous-  20  Eq.  483,  491;  In  re  St.  Stephen, 

ton's  Estate,  28  Pa.  C.  C.  285.  39  Ch.  D.  492;  In  re  Hunter,  [1897] 

1  Lewis,  Perp.  693-708.  1  Ch.  518;  reversed,  [1897]  2  Ch. 

2  Cases  since  Lewis  are  Carter  (C.  A.)  105;  In  re  Church  Patron- 
».  Cropley,  8  De  G.  M.  &  G.  680;  age  Trust,  [1904]  1  Ch.  41;  116  Law 
Shaw  v.  Thompson,  3  Ch.  D.  233.  T.  495;  [1904]  2  Ch.  643;  Marsden, 
The   validity  of  these  trusts  has  Perp.  309-311. 

been  assumed  in  them.     See  also  •""      *  §§  677-679  a,  post. 
Faulkner  v.  Elger,  4  B.  &  C.  449; 


CONSTRUCTION.  497 


CHAPTER  XIX. 
CONSTRUCTION. 

§  629.  THE  Rule  against  Perpetuities  is  not  a  rule  of  con- 
struction, but  a  peremptory  command  of  law.  It  is  not,  like 
a  rule  of  construction,  a  test,  more  or  less  artificial,  to  deter- 
mine intention.  Its  object  is  to  defeat  intention.  Therefore 
every  provision  in  a  will  or  settlement  is  to  be  construed  as  if 
the  Rule  did  not  exist,  and  then  to  the  provision  so  construed 
the  Rule  is  to  be  remorselessly  applied.1 

§  630.  This  is  expressed  by  several  of  the  judges  in  their 
opinions  given  to  the  House  of  Lords  in  the  case  of  Dungannon 
v.  Smith*  Thus  Mr.  Justice  Maule:  "The  existence  of  the 
Rule  as  to  Perpetuities  is  certainly  no  reason  for  altering  the 
construction  of  the  bequest."  3  Mr.  Justice  Patteson:  [The 
will  must]  "be  construed  without  reference  to  any  rule  of  law 
respecting  remoteness;  that  is,  in  the  first  instance,  and  for 
the  sole  purpose  of  ascertaining  the  testator's  meaning."  4 
Baron  Parke:  "Our  first  duty  is  to  construe  the  will;  and 
this  we  must  do,  exactly  in  the  same  way  as  if  the  Rule 
against  Perpetuity  had  never  been  established,  or  were 
repealed  when  the  will  was  made;  not  varying  the  con- 
struction in  order  to  avoid  the  effect  of  that  rule,  but  in- 
terpreting the  words  of  the  testator  wholly  without  reference 
to  it."5 

§  631.  To  the  same  effect  is  the  language  of  many  other 

1  See  Andrews    v.    Lincoln,  95          •  P.  578. 

Me.  541,  544.  «  P.  588. 

*  12  Cl.  &  F.  546.  •  P.  599. 


498 


THE   RULE  AGAINST  PERPETUITIES. 


cases.1    So  a  provision  void  for  remoteness  is  still  to  be  re- 
sorted to  for  construing  the  rest  of  the  will.2 

§  632.  But  it  is  hardly  in  human  nature  for  judges  not  to 
be  influenced  by  the  natural  desire  to  construe  deeds  and  wills 
so  as  to  carry  out,  as  far  as  possible,  the  intention  of  settlors 
and  testators,  rather  than  so  as  to  defeat  such  intention,  par- 
ticularly when  the  rule  which  threatens  it  is  harsh  in  its 
application,  which  the  Rule  against  Perpetuities,  however 
beneficial  its  general  operation,  undoubtedly  often  is;  and 
therefore  constructions  have  sometimes  been  put,  almost 
unconsciously,  on  wills  which  the  courts  would  never  have 
adopted  had  the  Rule  against  Perpetuities  not  existed.3  It  is 


1  Speakman  v.  Speakman,  8 
Hare,  180,  185,  486.  Cattlin  v. 
Brown,  11  Hare,  372,  375,  376. 
Taylor  v.  Frobisher,  5  De  G.  &  Sm. 
191,  197.  Pearks  v.  Moseley,  5  Ap. 
Gas.  714,  719,  733.  Stuart  ». 
Cockerell,  L.  R.  5  Ch.  713.  Heas- 
man  v.  Pearse,  L.  R.  7  Ch.  275, 
283.  Re  Mervin,  [1891]  3  Ch.  197, 
200,  201.  Re  Bowen,  [1893]  2  Ch. 
491,  496.  In  re  Hume,  [1912]  1  Ch. 
693.  Coggins's  Appeal,  124  Pa.  10, 
29.  Hewitt  v.  Green,  77  N.  J.  Eq. 
345.  Hutchinson  v.  Tottenham, 
[1898]  1  I.  R.  403,  418.  Compare 
Cunliffe  v.  Brancker,  3  Ch.  D.  393, 
399;  Harvey  v.  Stracey,  1  Drew.  73, 
126,  127;  Macpherson  v.  Stewart, 
28  L.  J.  Ch.  177,  178;  32  L.  T.  143; 
Bulteel  v.  Plummer,  L.  R.  6  Ch. 
160, 165;  Re  Watkins,  37  W.  R.  609, 
610;  Re  Turney,  [1899]  2  Ch.  739, 
744,  747;  Re  Stickney's  Will,  85 
Md.  79,  101;  Graham  v.  Whitridge, 
99  Md.  290;  Taylor  v.  Blake,  [1912] 
1  I.  R.  1;  Ferguson  v.  Ferguson,  2 
Can.  S.  C.  497;  Marsden,  Perp. 
262  et  seq.;  1  Jarm.  Wills  (6th  ed.) 
364;  Farwell,  Pow.  (2d  ed.)  290. 
The  decision  in  Dean  v.  Mumford, 


102  Mich.  510,  seems  questionable. 
On  the  effect  of  some  limitations 
in  an  instrument  being  too  remote 
upon  the  other  limitations,  see 
§§  247  et  seq.,  ante. 

3  "It  is  against  the  settled  rules 
of  construction  to  strike  out  any 
words  from  a  will  because  they 
offend  against  the  perpetuity  rule. 
For  all  purposes  of  construction, 
the  will  must  be  read  as  if  no 
such  rule  existed.  Any  dispositions 
which,  so  reading  and  construing 
it,  are  found  to  be  the  testator's 
wishes  must  be  taken  to  be  his 
wishes,  and  if  those  wishes  offend 
against  the  rule,  the  gifts  would 
fail,  and  must  fail  accordingly;  but 
they  are  not  the  less  part  of  his 
will,  and  to  be  resorted  to  as  part 
of  the  context  for  all  purposes  of 
construction,  as  if  no  such  rule  had 
been  established."  Per  James,  L.  J., 
Heasman  v.  Pearse,  L.  R.  7  Ch. 
275,  283,  disapproving  remarks  of 
Malins,  V.  C.,  in  s.  c.  L.  R.  11  Eq. 
522,  535.  See  Marsden,  Perp.  276. 

*  The  most  striking  instance  of 
this  is  shown  by  the  slight  distinc- 
tions at  which  courts  have  clutched 


CONSTRUCTION.  499 

obvious  that  this  irregular  action  of  the  judicial  mind  cannot 
be  denned  or  foretold. 

§  633.  But  there  is  a  legitimate  use  of  the  Rule  against 
Perpetuities  in  matters  of  construction.  When  the  expression 
which  a  testator  uses  is  really  ambiguous,  and  is  fairly  capable 
of  two  constructions,  one  of  which  would  produce  a  legal 
result,  and  the  other  a  result  that  would  be  bad  for  remote- 
ness, it  is  a  fair  presumption  that  the  testator  meant  to  create 
a  legal  rather  than  an  illegal  interest.  While  it  is  not  to  be 
conclusively  presumed  that  a  testator  knew  the  Rule  against 
Perpetuities,  for  such  a  presumption  would  often  involve  the 
absurdity  that  a  testator  intended  to  make  a  will  which  he 
was  aware  the  law  would  not  carry  into  effect,  there  is,  on  the 
other  hand,  no  presumption  that  he  did  not  know  it;  and 
therefore  the  fact  that  a  provision  would  be  too  remote,  if  con- 
strued in  a  certain  way,  is  a  reason  for  supposing  that  it  was 
not  intended  to  be  construed  in  that  way,  which,  although  it 
cannot  avail  against  a  clear  form  of  words,  may  well  be  held 
to  govern  when  the  expression  is  ambiguous.1  Especially  is 

in  construing  gifts  of  personalty  Christie  v.  Gosling,  L.  R.  1  H.  L. 
after  failure  of  issue,  for  the  pur-  279,  290;  Pearks  v.  Moseley,  5  Ap. 
pose  of  cutting  down  failure  of  Cas.  714,  719;  Re  Bevan's  Trusts, 
issue  to  failure  of  issue  at  a  certain  34  Ch.  D.  716,  718;  Re  Turney, 
time,  instead  of  giving  it  the  mean-  [1899]  2  Ch.  739,  747;  In  re  Hume, 
ing  of  indefinite  failure  of  issue,  [1912]  1  Ch.  693,  698;  Gray  v. 
which  it  ordinarily  bears,  but  which  Whittemore,  192  Mass.  367;  Far- 
would  have  the  effect  of  making  a  nam  v.  Farnam,  53  Conn.  261,  280; 
gift  over  of  personalty  too  remote.  Woodruff  v.  Marsh,  63  Conn.  125, 
See  particularly  Forth  v.  Chapman,  136;  St.  John  .v.  Dann,  66  Conn. 
1  P.  Wins.  663;  and  compare  401,  405;  Wolfe  v.  Hatheway,  81 
§§211-213,  ante;  Marsden,  Perp.  Conn,  181;  Carpenter  v.  Perkins,  83 
265  etseq.;  1  Jann.  Wills  (6th  ed.)  Conn.  11;  Butler  v.  Butler,  3  Barb. 
365.  Ch.  304,  310;  Post  v.  Hover,  33 
1  See  Co.  Lit.  42  a,  6;  Atkin-  N.  Y.  593,  601;  Du  Bois  v.  Ray,  35 
son  v.  Hutchinson,  3  P.  Wms.  258,  N.  Y.  162,  166,  167,  171;  Wolf's 
260;  Keiley  v.  Fowler,  Wilm.  298,  Estate,  9  W.  N.  C.  (Pa.)  260;  Cog- 
307;  Thellusson  v.  Woodford,  4  gins's  Estate,  124  Pa.  10,  29;  Mc- 
Ves.  227,  312;  Leach  v.  Leach,  2  Bride's  Estate,  152  Pa.  192;  Sid- 
Y.  &  C.  C.  C.  495,  499;  Liley  v.  dall's  Estate,  180  Pa.  127;  Re 
Hey,  1  Hare,  580,  §  408,  ante;  Stickney's  Will,  85  Md.  79,  101 


500  THE  RULE  AGAINST  PERPETUITIES. 

this  the  case  if  the  testator  shows,  by  other  provisions  of 
his  will,  that,  when  making  it,  he  has  had  the  Rule  against 
Perpetuities  in  his  mind.1  And  probably  estates  void  for 
remoteness  would  not  be  raised  by  implication.2 

§  633  a.  In  In  re  Finch's  Contract3  a  donee  of  a  special  power 
appointed  on  the  trusts  of  a  prior  instrument,  or  such  of  them 
as  "are  capable  of  taking  effect."  Held,  that  if  some  of  the 
trusts  failed  as  infringing  upon  the  Rule  against  Perpetu- 
ities, such  trusts  might  be  considered  as  excluded  from  the 
appointment. 

§  634.  There  are  some  cases  deserving  attention  in  which 
rules  of  construction  have  been,  or  are  supposed  to  have  been, 
unduly  warped  in  order  to  prevent  remoteness.  They  are 
Mogg  v.  Mogg,4  Leach  v.  Leach,5  Kevern  v.  Williams,6  and 
Elliott  v.  Elliott."1 

§  635.  (1)  Mogg  v.  Mogg.*  In  this  case  several  matters 
under  a  will  were  referred  to  the  Court  of  King's  Bench.  One 
was  the  construction  of  a  devise  of  an  estate  called  in  the 
case  the  Lower  Mark  estate.  The  testator  had  given  it  to 
trustees  to  apply  the  rents  towards  the  maintenance  "of  the 
child  and  children,  begotten  and  to  be  begotten, "  of  his  daugh- 
ter S.  "during  his,  her,  and  their  life  and  lives; "  and  after  the 
death  of  such  children  he  "gave  and  devised  the  said  estate 
to  the  lawful  issue  of  such  child  and  children"  of  said  S.,  "to 
hold  unto  such  issue,  his,  her,  and  their  heirs,  as  tenants  in 
common  without  survivorship."  As  to  this  Lower  Mark  es- 

et  seq.;  Heisen  v.  Ellis,  247  111.  418;  *  See    Chapman    v.    Brown,    3 

McCutcheon    v.     Pullman    Bank,  Burr.    1626;   Lewis,   Perp.    c.   26; 

251  111.  550;  Hancock  v.  Butler,  21  Suppl.  172;  1  Jarm.  Wills  (6th  ed.) 

Tex.  804,   806;   Klingman   v.   Gil-  366. 

bert,  90  Kans.  545;  In  re  Hobson's  [1903]  2  Ch.  486. 

Will,  [1907]  Viet.  L.  R.  724,  737;  1  Mer.  654. 

Moule  v.  Overton,  16  N.  Z.  L.  R.  2  Y.  &  C.  C.  C.  495. 

106,  114;  Marsden,  Perp.  208.   Cf.  5  Sim.  171. 

Dime  Savings  Co.  v.  Watson,  254  12  Sim.  276. 

111.  419.  1  Mer.  654.    See  Lewis,  Perp. 

1  Martelli  v.  Holloway,  L.  R.  5  590;  Marsden,  Perp.  266. 
H.  L.  532,  548. 


CONSTRUCTION.  501 

tate,  as  well  as  to  other  estates,  several  questions  were  put  to 
the  judges.  The  first  three  related  to  the  interests  of  the 
children  of  S.  (four  of  whom  had  been  born  in  the  lifetime  of 
the  testator,  and  five  after  his  death)  in  the  estates.  The 
fourth  question  was  this:  "Whether  the  grandchildren  of  S. 
(being  the  issue  of  such  of  her  children  as  were  living  at  the 
date  of  the  will,  or  of  such  of  her  children  as  were  born  after 
the  date  of  the  will,  and  prior  to  the  testator's  decease,  or  of 
such  of  her  children  as  were  born  subsequently  to  the  testator's 
decease)  take  any  and  what  estates  in  the  several  properties?"  x 
The  Court  gave  no  opinion,  but  sent  answers  to  the  queries. 
To  the  fourth  query  they  said  "that  the  issue  of  such  of  S.'s 
children  as  were  born  prior  to  the  testator's  decease  take  an 
interest  in  the  Lower  Mark  estate  as  tenants  in  common  in 
fee  simple  expectant  upon  the  determination  of  the  estate 
limited"  to  the  trustees,  "but  that  none  of  the  issue  of  such 
of  S.'s  children  as  were  born  after  the  testator's  death  take 
any  interest  in  the  Lower  Mark  estate,  and  that  none  of  the 
grandchildren  take  any  interest,  except  as  issue  in  tail,  in  any 
of  the  other  property."  2  Sir  William  Grant,  M.  R.,  confirmed 
the  certificate.  He  delivered  no  opinion,  but  the  decree  states 
that  the  nine  children  of  S.  took,  as  joint  tenants,  an  equitable 
estate  for  their  lives  and  the  life  of  the  survivor,  with  re- 
mainder in  fee  simple  to  the  issue  collectively  of  the  four 
eldest  of  such  children,  as  tenants  in  common.3  The  elaborate 
and  able  arguments  before  the  King's  Bench  and  the  Master 
of  the  Rolls  were  directed  to  the  question  of  the  children's 

1  P.  663.  too  remote.     It  is  to  be  observed 

1  P.  689.    It  is  possible  that  the  that  their  words  are,  that  the  former 

judges  may  have  meant  that  the  issue  "take  an  interest  in  the  Lower 

gift  was  of  each  child's  share  to  its  Mark  estate  as  tenants  in  common 

issue,  and  that  the  gifts  to  the  issue  hi  fee  simple,"  not  that  they  take 

of  those  children  of  S.  who  were  the  whole  estate.     No  such  expla- 

born  in  the  testator's  lifetime  were  nation,  however,  can  be  given  of 

good,  while  the  gifts  to  the  issue  of  the  decree  in  Chancery, 

those  children  of  S.  who  were  not  *  1  Mer.  706. 
born  in  the  testator's  lifetime  were 


502  THE  RULE  AGAINST  PERPETUITIES.       - 

estate.  The  question  who  of  the  grandchildren  were  to  take 
in  remainder  does  not  seem  to  have  been  discussed. 

§  636.  No  case  approaches  this  in  its  disregard  of  ordinary 
rules  of  construction  for  the  purpose  of  avoiding  remoteness. 
It  might  fairly  enough  have  been  contended  that  children  of 
S.,  born  after  the  testator's  death,  were  not  intended  to  take; 
but  to  hold  that  it  was  intended  that  all  the  children  should 
take  life  interests,  and  yet  that  the  issue  of  only  some  should 
take  the  whole  in  remainder,  seems  extravagant.  The  decision 
in  Mogg  v.  Mogg  is  unlikely  to  be  followed  at  the  present  day. 

§  637.  (2)  Leach  v.  Leach.1  Here  there  was  a  gift,  on 
the  death  of  the  testator's  wife,  brother,  and  sister,  to  E., 
the  eldest  daughter,  and  the  other  children  of  the  testator's 
brother,  in  equal  shares,  for  their  lives,  the  principal  to  be 
divided  among  the  issue  of  said  E.  and  the  other  children  of 
the  testator's  brother  in  equal  shares.  Vice-Chancellor  Knight 
Bruce  held,  "though  not  without  some  doubt,"  that  the  tes- 
tator intended  to  give  to  those  children  only  of  his  brother 
who  were  alive  at  his  own  death.  This  seems  to  have  been 
an  unjustifiable  straining  of  the  construction.  Ordinarily  all 
children  born  before  the  time  of  vesting  in  possession  (which 
the  Court  held  was  not  until  the  death  of  the  wife,  brother, 
and  sister)  would  be  considered  as  intended  to  take. 

§  638.  (3)  Kevern  v.  Williams.2  A  testator  gave  personal 
property  to  trustees,  after  the  death  of  his  wife,  in  trust  for  the 
grandchildren  of  his  brother,  to  be  by  each  of  them  received 
when  they  and  each  of  them  should  severally  attain  twenty- 
five  and  not  before.  It  was  held  that  only  those  grandchil- 
dren who  were  born  before  the  death  of  the  testator's  widow 
should  share  in  the  property.  This  case  has  been  spoken  of 
as  one  where  the  ordinary  canons  of  construction  were  violated 
to  avoid  the  objection  of  remoteness.8  But,  assuming  that  the 

1  2  Y.  &  C.  C.  C.  495.  See    Lewis,     Perp.     525;    Ker    v. 

1  5  Sim.  171.  Hamilton,  6  Viet.  L.  R.  Eq.  172, 

»  Mareden,  Perp.  105,  106,  110,  175. 
266.     Theob.  Wills  (7th  ed.)  380. 


CONSTRUCTION.  503 

postponement  of  payment  was  too  remote,  it  is  submitted  that 
the  decision  was  correct.  The  general  rule  of  law  is  that, 
upon  a  gift  to  a  class,  only  those  are  included  who  are  in  exist- 
ence at  the  time  of  distribution;  and  the  time  of  distribution 
is  considered  to  be  when  the  first  of  the  class  is  entitled  to 
his  share.  Now  here  the  brother's  grandchildren  took  an  ab- 
solute indefeasible  interest;  there  was  no  gift  over;  the  re- 
straints imposed  upon  the  reception  of  the  fund  were  nugatory.1 
Therefore  all  of  the  brother's  grandchildren  who  were  alive  at 
the  death  of  the  widow  were  entitled  at  once  to  their  shares; 
that  was  the  time  of  distribution;  the  class  was  then  closed;  and 
no  after-born  grandchildren  could  take. 

§  639.  It  is  true  that  although  a  restriction  on  the  recep- 
tion of  an  interest  indefeasibly  vested  cannot  be  created  for  the 
supposed  benefit  of  the  recipient,  yet  it  will  be  upheld  when  it 
may  be  for  the  benefit  of  other  persons;  for  their  sake  the 
period  of  distribution  may  be  postponed,  and  so  long  as  distri- 
bution is  postponed,  the  class  to  take  may  be  increased.2  And 
further,  if,  by  giving  effect  to  a  direction  for  postponement  of 
payment  of  an  indefeasibly  vested  gift  to  a  class,  the  class  itself 
may  be  increased,  the  tune  for  distribution  will  be  postponed. 
Thus  in  Oppenheim  v.  Henry 3  a  testator  directed  property  to  be 
held  in  trust  for  his  grandchildren,  to  be  divided  equally  among 
them  at  the  end  of  twenty  years  after  his  death.  Wood,  V.  C., 
held  that  the  grandchildren  had  a  vested  interest,  but  that  all 
born  before  the  end  of  the  twenty  years  were  entitled. 

1  See    Chap.   IV.,   ante;    Gray,  Harrington    v.    Tristram,    6    Ves. 

Restraints  on  Alienation  (2d  ed.),  345.     Whitbread  v.  St.   John,    10 

§§  106-112,  297,  298.  Ves.  152.     Balm  v.  Balm,  3  Sim. 

1  Thus  when  a  gift  to  a  class  on  492.     Emmet's  Estate,  13  Ch.  D. 

reaching  a  certain  age  is  accom-  484.     See  In  re  Stephens,  [1904]  1 

panied  by  a  valid  gift  over  on  fail-  Ch.  322. 

ure  of  any  member  of  the  class  to  *  10  Hare,  441.    This  case  was 

reach  that  age,  all  members  of  the  incorrectly  dealt  with  in  the  first 

class  coming  into  existence  before  edition. 

the  eldest  reaches  the  required  age  The   case,    it   is   submitted,    is 

are    allowed    to    share.      Andrews  sound.    It  appears  to  be  the  only 

».  Partington,  3  Bro.  C.  C.  401.  direct  decision  upon  the  point. 


504  THE   RULE   AGAINST  PERPETUITIES. 

§  639  a.  Stitt  on  the  assumption  that  the  postponement  of 
payment  in  Kevern  v.  Williams  was  too  remote,  the  difference 
between  that  case  and  Oppenheim .  v.  Henry  is  that  in  the  latter, 
the  time  to  which  payment  was  postponed  was  not  too  remote, 
and  therefore  the  direction  for  postponement  was  allowed  to 
operate  for  the  benefit  of  after-born  members  of  the  class,  while 
in  the  former,  the  time  to  which  payment  was  postponed 
being  too  remote  had  to  be  rejected  altogether,  so  that  there 
was  nothing  to  interfere  with  the  ordinary  application  of  the 
rule,  and  as  the  brother's  grandchildren  had  absolutely  vested 
interests  payable  at  once,  the  class  was  necessarily  confined  to 
those  who  had  been  born  before  the  death  of  the  testator's 
wife.1 

§  639  a  a.  Hitherto  we  have  gone  upon  the  assumption, 
which  seems  to  have  been  generally  made,  that  the  postpone- 
ment of  payment  in  Kevern  v.  Williams  was  too  remote;  but 
is  this  correct?  The  eldest  grandchild  was  ten  years  old  at  the 
testator's  death.  If  he  lived,  he  was  entitled  to  payment  of  his 
share  when  he  reached  twenty-five;  if  he  died  his  executor 
was  entitled  to  payment,  when,  had  he  lived,  he  would  have 
reached  twenty-five;2  on  either  alternative  the  time  of  distri- 
bution and  the  determination  of  the  class  would  be  within 
twenty-one  years  after  a  life  in  being  and  would  not  be  too 
remote.  It  seems  therefore  that  the  decision  in  Kevern  v. 

1  In  Blease  v.  Burgh,  2  Beav.  his  brother;  if  he  was  not  to  be  in- 
221,  there  was  a  gift  to  the  children  eluded,  then,  as  administrator  of 
of  A.,  but  not  to  be  paid  them  till  his  brother,  he  was  entitled  to  the 
they  reached  twenty-three.  There  whole.  The  case,  therefore,  de- 
was  a  gift  over,  but  it  was  held  bad  cides  nothing  as  to  the  time  of  dis- 
for  remoteness.  A.  had  one  child,  tribution  and  the  ascertainment 
B.,  at  the  death  of  the  testator.  of  the  class.  It  is  submitted,  how- 
Afterwards  he  had  another  child,  ever,  that  C.  was  entitled,  as  his 
C.  B.  died  under  age,  but  C.  brother's  administrator  (though  the 
reached  twenty-three,  and  was  opinion  of  Lord  Langdale,  M.  R., 
appointed  B.'s  administrator.  C.  seems  to  have  been  otherwise), 
was  held  entitled  to  the  gift.  If  a  Cheteer  v.  Painter,  2  P.  Wms. 
he  was  to  be  included  in  the  class,  335.  Roden  v.  Smith,  Amb.  588. 
then  he  claimed  partly  in  his  own  Maher  v.  Maher,  1  L.  R.  Ir.  22. 
right,  partly  as  administrator  of 


CONSTRUCTION.  505 

Williams  cannot  be  maintained,  and  that  the  class  of  grand- 
children should  have  been  allowed  to  increase  until  the  eldest 
grandchild  reached,  or,  if  living,  would  have  reached,  twenty- 
five.1 

§  640.  (4)  Elliott  v.  Elliott.2  A  testator  gave  his  personal 
estate  to  his  daughter's  children,  in  equal  shares,  as  and  when 
they  should  attain  their  respective  ages  of  twenty-two  years, 
the  interest  on  their  respective  shares  to  be  accumulated  and 
to  be  paid  to  them  as  and  when  the  principal  should  be  pay- 
able. Shadwell,  V.  C.,  held  that  the  gift  in  question  was  a 
gift  to  such  only  of  the  daughter's  children  as  were  alive  at 
the  testator's  death.  If  this  was  a  vested  interest,  then  the 
remarks  above  with  reference  to  Kevern  v.  Williams  apply 
to  it.  If  it  was  a  contingent  gift,  the  decision  would  seem 
wrong. 

§  641.  The  case  is  near  the  line;  if  it  had  not  been  the  gift 
of  a  residue  it  would  probably  have  been  contingent;  but  the 
fact  that  it  was  a  gift  of  a  residue  is  an  argument  in  favor  of 
vesting.3  Perhaps  this  may  fairly  be  considered  a  case  of 
sufficient  ambiguity  to  justify  a  reference  to  the  Rule  against 
Perpetuities  as  indicating  intention.4 

1  See    §§  121    a,  121  6,     442  a,  increase,   is,   according  to  Oppen- 

ante;  679,  post',  Hawkins,  Wills  (2d  heim  v.  Henry,  good.     See   §  639, 

ed.)  102.     The  author  is  indebted  ante, 
to  his  learned  friend  and  former  *  12  Sim.  276. 

pupil,  Professor  Kales,  for  suggest-  s  See  1  Jarm.    Wills   (6th    ed.) 

ing  this  criticism  on  Kevern  v.  Wil-  365;  2  id.  1679;  Theob.  Wills  (7th 

liams.  ed.)  309;  Lewis,  Perp.  Suppl.  155, 

In  2  Jarm.  Wills  (6th  ed.)  1679,  171. 

note  (n),  Mr.  Charles  Sweet  says:  4  §  633,  ante.     See   also   Main- 

"I  submit  that  as  a  direction  post-  waring  v.  Beevor,  8  Hare,  44.  48; 

poning  enjoyment  of  a  vested  in-  Gosling  v.  Gosling,  Johns.  265,  274. 

terest  beyond  the  age  of  twenty-  Elliott  v.  Elliott  was  followed  by 

one  is  void,  the  gift  in  Kevern  t;.  In  re  Coppard,  35  Ch.  D.  350.    See 

Williams   was   in   effect   simply   a  In  re  Wenmoth's  Estate,  37  Ch.  D. 

gift  to  A.  for  life  with  remainder  to  266;  In  re  Mervin,  [1891]  3  Ch.  197; 

the  grandchildren  of  B."    But,  ex-  Willerton  v.  Stocks,  [1892]  W.  N. 

cept  for  remoteness,  such  a  direc-  29;  In  re  Stevens,  [1896]  W.   N. 

tion,  if  made  to  allow  a  class  to  24;    In   re   Powell,    [1898]   1   Ch. 


506  THE   RULE   AGAINST   PERPETUITIES. 

§  642.  In  previous  chapters  have  been  considered  the  con- 
struction of  limitations  of  personalty  to  go  along  with  realty, 
"so  far  as  law  and  equity  will  permit,"  *  the  carrying  out  of 
executory  trusts,2  and  the  rejection  of  modifying  and  quali- 
fying clauses  when  too  remote.3 

§  643.  Cy  pres.  —  There  is  one  well-recognized  exception 
to  the  rule  that  the  question  of  remoteness  will  not  affect  the 
construction  of  limitations  expressed  in  unambiguous  lan- 
guage. When  land  is  devised  to  an  unborn  person  for  life,  re- 
mainder to  his  children  in  tail,  either  successively  or  as  tenants 
in  common  with  cross-remainders,  the  unborn  person  takes  an  es- 
tate tail;  and  when  land  is  devised  to  an  unborn  person  for  life, 
remainder  to  his  sons  in  tail  male,  either  successively  or  as  ten- 
ants in  common  with  cross-remainders,  the  unborn  person  takes 
an  estate  tail  male.4  This  is  called  the  doctrine  of  cy  pres.5 

§  644.  The  occasion  for  the  construction  cy  pres  of  a  devise 
to  A.  for  life,  remainder  to  his  children  in  tail,  as  giving  an 
estate  tail  to  A.,  arises  not  only  (1)  when  A.  is  unborn,  and 
his  children  are  therefore  beyond  the  limits  of  the  Rule  against 
Perpetuities,6  but  also  (2)  when  A.  is  the  object  of  a  power, 
but  his  children  are  not.  The  same  principles  govern  both 
classes  of  cases,  and  therefore  both  are  in  point  here. 

§  645.   (1)   The  first  cases  hi  which  the  doctrine  of  cy  pres 

227;  Re  Barker,  92  L.  T.  R.  831;  »  See  Chap.  XIII.,  ante. 

In  re  Hobson's  Will,  [1907]  Viet.  4  And  a  like  method  is  to  be 

L.  R.  724,  730;  2  Jarm.  Wills  (6th  pursued  when  a  perpetual  series  of 

ed.)  1679;  Theob.  Wills  (7th  ed.)  life  estates  is  given.     See   §§652 

309;  Tud.  L.  C.  in  Real  Prop.  (4th  et  seq.,  post. 

ed.)  424.  •  In  re  Mortimer,  [1905]  2  Ch. 

In    Wetherell    v.    Wetherell,    4  (C.  A.)  502,  506.    Guy  v.  Guy,  30 

Giff.  51,  1  De  G.  J.  &  S.  134,  some  N.  Z.  383.     Wms.  Real  Prop.  (22d 

of  the  class  had  reached  majority  ed.)  421.    1  Jarm.  Wills  (6th  ed.) 

at  the  testator's  death  (see  4  Giff.  288,  366.     Hawkins,  Wills  (2d  ed.) 

54) ;    and    consequently    the    class  223.    This  must  not  be  confounded 

was  then  closed  without  calling  for  with  the  doctrine  of  cy  pres  in  its 

any  aid  from  the  Rule  against  Per-  application  to  charities.    See  §§  607 

petuities.  et  seq.,  ante. 

1  See  §§  363-367,  ante.  •  As,   for  instance,   in  Vander- 

1  See  §§  365,  note,  418,  ante.  plank  v.  King,  3  Hare,  1. 


CONSTRUCTION. 


507 


was  applied  were  instances  of  carrying  out  executory  trusts.1 
In  Nichott  v.  Nicholl  *  (1777)  the  doctrine  of  ay  pres  was  ap- 
plied to  the  devise  of  a  legal  estate,  though  the  propriety  of 
its  application  under  the  circumstances  of  the  case  has  been 
questioned.3  In  Pitt  v.  Jackson*  (1786)  it  was  applied  to  the 
devise  of  a  legal  estate  by  Sir  Lloyd  Kenyon,  M.  R.6  This  case 
has  always  been  spoken  of  as  going  to  the  verge  of  the  law,8 
but  it  has  also  been  always  followed; 7  and  it  is  now  settled 
that  the  doctrine  of  cy  pres  applies  to  direct  devises,  and  not 


1  Humberston  v.  Humberston,  1 
P.  Wms.  332;  2  Vern.  737;  Free. 
Ch.  455;  Gilb.  Eq.  128  (1716). 
Hucks  v.  Hucks,  2  Ves.  Sr.  568 
(1754).  See  Marlborough  v.  Godol- 
phin,  1  Eden,  404,  422,  423;  Godol- 
phin  v.  Godolphin,  1  Ves.  Sr.  21, 
23;  Mortimer  v.  West,  2  Sim.  274, 
282,  283;  Lyddon  t>.  Ellison,  19 
Beav.  565,  573;  1  Jarm.  Wills  (6th 
ed.)  289;  Marsden,  Perp.  268  et 
seq.,  §  418,  ante. 

1  2  W.  Bl.  1159. 

s  See  §  647,  post. 

«  2  Bro.  C.  C.  51. 

5  The  decree  of  the  Master  of 
the  Rolls  in  this  case  was  reversed, 
sub  nom.  Smith  v.  Camelford,  2 
Ves.  Jr.  698,  by  Lord  Lough- 
borough,  C.,  on  another  point;  but 
on  the  question  of  cy  pres  the  Lord 
Chancellor  said  he  should  feel  him- 
self "very  much  inclined  to  adopt 
the  idea  he  (the  Master  of  the  Rolls) 
pursued."  p.  711.  See  Sugd.  Pow. 
(8th  ed.)  499-501;  Prior,  Lim. 


It  has  been  discussed  whether 
the  doctrine  of  cy  pres  was  applied 
in  Hopkins  v.  Hopkins,  West,  606; 
1  Atk.  580;  1  Ves.  Sr.  268;  Co.  Lit. 
2716,  Butler's  note  (1739).  See 
Vanderplank  v.  King,  3  Hare,  1, 
12;  Feame,  C.  R.  206,  Butler's 


note;  Prior,  Lim.  §  90;  1  Jarm. 
Wills  (6th  ed.)  294;  Lewis,  Perp. 
429,  note  (3).  See  also  Chapman 
v.  Brown,  3  Burr.  1626. 

•  By  Lord  Kenyon  himself, 
Brudenell  t>.  Elwes,  1  East,  442, 
451.  By  Lord  Eldon,  s.  c.  7  Ves. 
382,  390.  By  Lord  St.  Leonards, 
Stackpoole  v.  Stackpoole,  4  Dr.  & 
W.  320,  350.  By  Sir  J.  L.  Knight 
Bruce,  Boughton  v.  James,  1  Coll. 
26,  44.  By  Sir  James  Wigram, 
Vanderplank  v.  King,  3  Hare,  1, 
12.  By  Baron  Rolfe,  Monypenny 
v.  Dering,  16  M.  &  W.  418,  432, 
434.  By  Stirling,  L.  J.,  in  In  re 
Mortimer,  [1905]  2  Ch.  (C.  A.)  502, 
513.  See  Fearne,  C.  R.  208,  Butler's 
note;  Lewis,  Perp.  453,  454. 

7  Griffith  v.  Harrison,  4  T.  R. 
737,  748  (see  s.  c.  3  Bro.  C.  C.  410, 
415;  Fearne,  C.  R.  207,  Butler's 
note;  Sugd.  Pow.  (8th  ed.)  499, 
500).  Stackpoole  v.  Stackpoole,  4 
Dr.  &  W.  320,  350.  Vanderplank 
v.  King,  3  Hare,  1,  12,  16.  Line  v. 
Hall,  43  L.  J.  Ch.  107.  Peyton  v. 
Lambert,  8  Ir.  C.  L.  485.  See 
Robinson  v.  Hardcastle,  2  Bro.  C.  C. 
22,  344;  2  T.  R.  241,  380,  781; 
Parfitt  v.  Hember,  L.  R.  4  Eq.  443; 
Hampton  v.  Holman,  5  Ch.  D.  183, 
190;  Sugd.  Pow.  (8th  ed.)  501; 
Lewis,  Perp.  Suppl.  146. 


508  THE   BULB   AGAINST   PERPETUITIES. 

merely  to  executory  trusts.1  The  statement  to  the  contrary 
in  Mortimer  v.  West 2  is  not  law. 

§  646.  (2)  The  doctrine  of  cy  pres  is  applied  only  in  wills, 
not  in  deeds.3  Any  new  distinction  between  the  construction 
of  deeds  and  of  wills  is  certainly  to  be  deprecated  at  the  present 
day;  but  the  disposition  of  courts  to  confine  the  doctrine 
of  cy  pres  within  the  narrowest  limits,  and  the  high  authority 
of  Lord  Eldon  as  to  the  existence  of  this  distinction,  will  prob- 
ably cause  it  to  be  maintained. 

§  647.  (3)  A  devise  will  not  be  construed  cy  pres  when 
such  construction  might  have  the  effect  of  passing  the  estate 
to  persons  to  whom  no  interest  is  given  in  the  will.  Thus  a 
devise  to  an  unborn  person  for  life,  remainder  to  his  first  son 
in  tail  male,  cannot  be  construed  cy  pres  into  an  estate  tail  male 
for  the  unborn  person,  for  under  such  construction  his  second 
and  other  sons  would  inherit.4  So  if  the  remainder  to  the 
children  of  the  unborn  person  is  in  fee,  the  unborn  person  cannot 
take  a  fee  cy  pres,  for  that  would  let  in  his  collateral  relations.5 

1  On  a  further  point  decided  by      Ch.  533;  In  re  Mortimer,  [1905]  2 
Pitt  v.  Jackson,  see  §  649,  post.  Ch.    (C.   A.)    502;    1   Jarm.   Wills 

2  2  Sim.  274,  282,  283.  (6th  ed.)  292. 

*  Brudenell   v.    Elwes,    1   East,  If  Nicholl  t;.  Nicholl,  2  W.  Bl. 

442,  451;  7  Ves.  382,  390.     Lewis,  1159,  is  to  be  considered  as  decid- 

Perp.  440.    See  Stackpoole  v.  Stack-  ing  the  contrary,  it  must  be  held 

poole,  4  Dr.  &  W.  320,  348;  2  Prest.  to   be   overruled.     Monypenny   v. 

Abs.   166.     Cf.  Adams  v.  Adams,  Dering,  16  M.  &  W.  418,  434-436; 

Cowp.  651;  Sugd.  Pow.   (8th  ed.)  2  De  G.  M.  &  G.  145,  175.    In  re 

494,   note   (a),   502,   503;  3  Prop.  Mortimer,  [1905]  2  Ch.  (C.  A.)  502, 

Lawyer,    249.     In   the   place   last  512,514.    Prior,  Lim.  §91.  1  Jarm. 

cited  are  printed  the  opinions  of  Wills  (6th  ed.)  293,  note  (A). 
Sir  John  Scott,  Sir  John  Mitford,  •  Hale  v.  Pew,  25    Beav.    335. 

Sir  Samuel  Romilly,  and  Mr.  Hoi-  Wood  v.  Griffin,  46  N.  H.  230.    Cf. 

list,  taken  when  a  reopening  of  the  Bristow  v.  Warde,  2  Ves.  Jr.  336; 

case    of    Adams    v.    Adams    was  Lewis,   Perp.   430;   1   Jarm.   Wills 

mooted.  (6th  ed.)  295. 

4  Monypenny  v.  Dering,   16  M.  In  those  of  the  United  States, 

&  W.  418;  2  De  G.  M.  &  G.  145.  therefore,    where    estates   tail   are 

See  Griffith  v.  Harrison,  4  T.  R.  turned  into  estates  in  fee  simple, 

737,    748;    Seaward  v.  Willock,    5  the  doctrine  of  cy  pres  can  properly 

East,   198;  In  re  Rising,  [1904]   1  have  no  application.     §  669,  post. 


CONSTRUCTION. 


509 


And  for  a  like  reason  the  doctrine  of  cy  pres  cannot  be  applied 
to  personalty.1 


St.  Amour  v.  Rivard,  2  Mich.  294; 
§  665,  post.  But  see  Allyn  v. 
Mather,  9  Conn.  114;  §§  662,  663, 
post;  Gibson  c.  McNeely,  11  Ohio 
St.  131;  §§666,  668,  post. 

1  Routledge  v.  Dorril,  2  Ves.  Jr. 
357,  364,  365.  Lewis,  Perp.  435  et 
seq.  Sugd.  Pow.  (8th  ed.)  502. 
Tud.  L.  C.  in  Real  Prop.  (4th  ed.) 
615. 

When  personal  property  is  given 
to  an  unborn  person  for  life,  re- 
mainder to  his  children  and  the 
heirs  of  their  bodies  (as,  for  in- 
stance, when  a  mixed  fund  of  realty 
and  personalty  is  given  on  such  a 
limitation),  the  law  is  not  entirely 
clear.  Are  we  to  say  that  if  the 
subject  of  the  gift  was  realty,  the 
unborn  person  would  take  an  estate 
tail,  and  that  words  which  carry  an 
estate  tail  in  realty  give  an  absolute 
interest  in  personalty;  or  are  we  to 
apply  the  words,  as  they  stand,  di- 
rectly to  the  personalty?  In  the 
former  case  the  unborn  person 
will  get  an  absolute  interest,  in 
the  latter  he  will  take  a  Life  in- 
terest and  the  gift  over  will  be 
void.  Sir  J.  L.  Knight  Bruce 
states  the  question  without  decid- 
ing it,  although  his  inclination  seems 
to  be  to  favor  the  latter  mode  of 
treatment.  Boughton  v.  James,  1 
Coll.  26,  44.  Mr.  Prior,  in  hia 
treatise  on  Limitations,  §  96,  seems 
inclined  to  the  former.  Mr.  Lewis 
(Perp.  437-439)  states  the  argu- 
ment in  favor  of  the  former  view, 
but  leaves  the  reader  uncertain  as 
to  his  own  opinion.  The  grounds 
of  the  decision  in  Mogg  v.  Mogg,  1 
Mer.  654,  which  is  sometimes  re- 


ferred to  as  favoring  the  former 
view,  are  too  uncertain  to  make  it 
of  value  as  an  authority.  Prior, 
Lim.  §§  96,  314;  Lewis,  Perp.  431, 
432,  438,  439. 

The  decision  of  the  matter  de- 
pends on  the  answer  to  be  given  to 
this  question:  "Is  a  legatee  to  take 
an  absolute  interest  when  such 
words  are  used  as  would,  if  used  hi 
a  devise  of  realty,  give,  as  a  matter 
of  law,  an  estate  tail,  or  is  a  legatee 
to  take  an  absolute  interest  only 
when  such  words  are  used  as  would, 
if  used  in  a  devise  of  realty,  show 
an  intent  to  give  an  estate  tail." 
Thus  if  personalty  is  bequeathed  to 
A.  for  life,  remainder  to  the  heirs 
of  the  body  of  A.,  is  A.  to  take  the 
absolute  interest  because,  by  the 
Rule  in  Shelley's  Case,  a  devisee  of 
realty  would  take  the  fee?  Or  is 
A.  to  have  only  a  life  estate,  be- 
cause that  is  all  that  the  testator 
has  intended  that  he  shall  take? 

Unfortunately  this  general  ques- 
tion is  hard  to  answer;  cases  raising 
it  have  been  usually,  Like  that  above 
given,  where  the  Rule  in  Shelley's 
Case  would  govern  a  devise  of 
realty.  In  a  long  series  of  cases  a 
bequest  of  personalty  to  A.  for 
Life,  remainder  to  the  heirs  of  his 
body,  has  been  held  to  pass  an  ab- 
solute interest;  Theob.  Wills  (7th 
ed.)  477;  Hawkins,  Wills  (2d  ed.) 
232;  and  probably  this  is  a  settled 
rule  of  construction  which  would 
not  now  be  departed  from;  but  the 
courts  have  of  late  indicated  that 
such  decisions  are  to  be  now  fol- 
lowed only  on  the  principle  of  stare 
decisis,  and  that  where  the  language 


510 


THE   RULE  AGAINST  PERPETUITIES. 


§  648.  (4)  A  devise  will  not  be  construed  ay  pres  when  such 
construction  would  have  the  effect  of  excluding  persons  to  whom 
an  interest  is  given  in  the  will.  Thus  if  there  is  a  devise  to  an 
unborn  person  for  life,  remainder  to  his  sons  successively  in 
tail  general,  an  estate  tail  male  will  not  be  given  by  cy  pres  to  the 
unborn  person,  because  that  would  exclude  the  daughters  of 
his  sons.  This  proposition  is  in  accordance  with  the  decisions 
and  language  of  the  courts  in  the  cases  referred  to  in  the  pre- 
ceding section; l  and  the  point  has  now  been  decided; 2  and 
indeed  it  seems  not  so  objectionable  to  exclude  some  of  a  class, 
all  of  whom  would  be  excluded  except  for  the  doctrine  of  cy 
pres,  as  to  let  in  persons  to  whom  nothing  has  been  given.3 


varies  they  will  follow  out  the  in- 
tention of  the  testator  and  not  give 
an  absolute  interest  in  personalty, 
simply  because  an  artificial  rule, 
overthrowing  the  intention,  would 
give  an  estate  tail  in  realty.  Thus 
in  Ex  parte  Wynch,  5  De  G.  M.  & 
G.  188,  a  bequest  to  A.  for  his  life, 
remainder  to  his  issue,  was  held  to 
give  A.  a  life  interest  only.  Prior, 
Lira.  §§  301-316.  Hawkins,  Wills 
(2d  ed.)  241.  Wms.  Pers.  Prop. 
(17th  ed.)  403.  So  a  bequest  to 
A.  for  life,  and  after  his  death  to 
his  heirs,  was  considered  by  Jessel, 
M.  R.,  to  give  only  a  life  interest. 
Smith  v.  Butcher,  10  Ch.  D.  113. 
See  2  Jarm.  Wills  (6th  ed.)  1193  et 
seq.  A  painstaking  note  on  this 
point,  where  many  cases  are  col- 
lected, will  be  found  in  29  Lawyers' 
Rep.  Annotated,  N.  s.  963.  A  better 
statement  of  the  doctrines  of  law 
involved  is  in  4  111.  Law  Rev. 
639. 

According  to  this  more  modern 
and  more  reasonable  view,  a  gift 
of  personalty  should  be  construed 
without  regard  to  the  effect  that 


the  doctrine  of  cy  pres  would  have 
upon  a  similar  devise  of  realty. 

1  And  see  Adams  v.  Adams, 
Cowp.  651. 

1  In  re  'Rising,  [1904]  1  Ch.  533. 
And  see  In  re  Richardson,  [1904]  1 
Ch.  332,  341. 

1  In  Line  v.  Hall,  decided  in 
1873,  there  was  a  power  in  A.  to 
appoint  to  his  children;  he  ap- 
pointed to  his  son  G.  for  life,  with 
a  remainder  (1)  (according  to  43 
L.  J.  Ch.  107)  to  G.'s  first  and 
other  sons  successively  in  tail,  re- 
mainder to  G.'s  daughters  *  in  tail; 
but  (2)  (according  to  [1873]  W.  N. 
198)  to  the  first  and  other  sons  of 
G.  successively  in  tail  male;  but 
again  (3)  (according  to  22  W.  R. 
124)  to  the  first  and  other  sons 
of  G.  successively  in  tail.  Jessel, 
M.  R.,  is  declared  in  all  the  reports 
to  have  decided  that  G.  took  an 
estate  tail  by  cy  pres.  This  was 
correct  according  to  statement  (1). 
If  the  facts  were  as  given  in  state- 
ment (2),  G.  would  have  taken  an 
estate  tail  male.  If  statement  (3) 
had  been  correct,  the  doctrine  of 


The  book  says  "daughter,"  but  this  ia  assumed  to  be  a  misprint. 


CONSTRUCTION.  511 

§  649.  (5)  An  estate  tail  can  be  given  by  cy  pres  to  an  an- 
cestor if  all  his  issue  are  given  by  the  devise  vested  interests 
in  tail  in  the  whole  of  the  estate  as  purchasers,  although  they 
will  not  inherit  from  him  in  the  same  order  in  which  the  estate 
is  devised  to  them  as  purchasers.  Thus  if  an  estate  is  given  to 
an  unborn  person  for  life,  remainder  to  his  children  as  tenants 
in  common  in  tail,  with  cross-remainders  in  tail,  such  person 
can  take  an  estate  tail  by  cy  pres,  for  every  descendant  has  the 
possibility,  both  under  the  devise  as  framed  (apart,  of  course, 
from  the  question  of  remoteness),  and  as  heir  in  tail  of  A.,  of 
taking  the  whole  estate.1  If  in  such  case  there  were  no  cross- 
remainders,  and  consequently  no  chance  for  every  child  of  the 
unborn  person  to  take  the  whole  estate,  the  doctrine  of  cy  pres 
could  not  have  been  applied. 

§  650.  (6)  When  estates  for  life  are  devised  to  a  class,  and 
the  share  of  each  member  is  given  to  his  or  her  children  in 
tail,  and  some  of  the  members  are  born,  and  some  are  not,  the 
doctrine  of  cy  pres  will  be  applied  to  the  shares  of  the  latter, 
although  not  to  those  of  the  former.2 

cy  pres  could  not  have  been  ap-  James  Wigram,  who  decided  it, 
plied.  G.  could  not  have  taken  an  speaking  of  the  gift  to  the  grand- 
estate  tail  male,  for  that  would  children  as  being  a  gift  to  a  single 
have  excluded  his  son's  daughters  class,  so  that  the  share  of  each 
(see  the  text);  and  he  could  not  would  remain  undetermined  until 
have  taken  an  estate  tail,  for  that  the  whole  class  was  closed.  3  Hare, 
would  have  included  his  daughters,  13-15.  This  would  seem  to  indi- 
see  §  647,  ante.  cate  a  gift  to  all  the  grandchildren 

1  Pitt  v.  Jackson,  2  Bro.   C.  C.  per  capita.    On  such  a  construction, 
51.   Vanderplank  v.  King,  3  Hare,  1.  the  doctrine  of  cy  pres,  if  applied 
Fearne,   C.   R.   206,  207,   Butler's  at  all,  would  have  to  be  applied  to 
note.    1  Jarm.  Wills  (6th  ed.)  293.  the  whole  estate,  for  the  shares  of 
Lewis,  Perp.  431.  those  grandchildren  whose  parents 

2  Guy  v.  Guy,  30    N.  Z.   383.  did  not  take  estates  tail  could  not 
This  seems  to  have  been  the  effect  be   determined.     This   appears   to 
of  Vanderplank  v.  King,  3  Hare,  1,  have  been   the   understanding  by 
as  construed  by  the  Court.    It  is  so  Mr.  Lewis  of  the  construction  put 
understood  by  Mr.  Marsden,  Perp.  upon  the  devise  in  Vanderplank  v. 
271,  and  in  1  Jarm.  Wills  (6th  ed.)  King;  and  on  this  construction  his 
293.    But  the  case  is  confused  by  criticism  against  the  partial  appli- 
the    learned    Vice-Chancellor,    Sir  cation  of  the  doctrine  of  cy  pres 


512 


THE    RULE   AGAINST   PERPETUITIES. 


§  651.  (7)  The  doctrine  of  cy  pres  is  not  to  be  extended.1 
§  652.  (8)  When  a  series  of  successive  life  estates  is  de- 
vised to  one  and  his  issue  forever,  with  cross-remainders,  the 
first  generation  that  is  unborn  at  the  testator's  death  takes  an 
estate  tail  by  cy  pres.  Thus,  if  an  estate  is  devised  to  A.  for 
life,  remainder  to  his  children  as  tenants  in  common  for  their 
respective  lives,  remainder,  as  to  the  share  of  each  child,  to  its 
children  as  tenants  in  common  for  their  lives,  and  so  on,  suc- 
cessive generations  taking  estates  for  life  forever,  with  cross- 
remainders;  and  A.  has  two  children,  one  B.,  born  before,  and 
another  C.,  born  after  the  testator's  death,  then  B.'s  children 
will  take  estates  tail,  and  C.  will  take  an  estate  tail.  Humber- 
ston  v.  Humberston.2  This  was  a  case  of  an  executory  trust; 3 
but  in  Parfitt  v.  Heniber*  where  it  was  considered  that  the 
testator  had  intended  to  create  a  series  of  life  estates  in  perpe- 
tuity, Lord  Romilly,  M.  R.,  by  cy  pres  gave  the  unborn  issue 
an  estate  tail,5  declaring  that  the  doctrine  was  not  confined 


seems  sound.  Lewis,  Perp.  Suppl. 
146-148.  But  on  the  whole  the  in- 
terpretation of  the  case  given  in  the 
text  is  probably  the  correct  one. 
3  Hare,  17,  18.  See  Lewis,  Perp. 
Suppl.  59. 

See  also  Humberston  v.  Hum- 
bereton,  1  P.  Wms.  332.  But  cf. 
Williams  v.  Teale,  6  Hare,  239,  253. 
Lewis,  Perp.  149-151. 

1  Brudenell  v.  Elwes,  1  East, 
442,  451;  7  Ves.  382,  390.  Bough- 
ton  v.  James,  1  Coll.  26,  44.  Hale 
v.  Pew,  25  Beav.  335,  338.  See 
Bristow  v.  Warde,  2  Ves.  Jr.  336; 
Monypenny  v.  Bering,  16  M.  &  W. 
418,  428,  434;  In  re  Mortimer, 
[1905]  2  Ch.  (C.  A.)  502,  505,  512, 
513;  Dennehy's  Estate,  17  Ir.  Ch. 
97;  Lewis,  Perp.  453,  454;  Suppl. 
152;  Fearne,  C.  R.  208,  Butler's 
note;  1  Jarm.  Wills  (6th  ed.)  289; 
§  645,  ante. 


1  1  P.  Wms.  332;  2  Vern.  737; 
Free.  Ch.  455;  Gilb.  Eq.  128. 

J  See  Mortimer  v.  West,  2  Sim. 
274,  282;  1  Jarm.  Wills  (6th  ed.) 
289;  Lewis,  Perp.  450. 

«  L.  R.  4  Eq.  443. 

6  "When  the  Court  finds  that 
the  object  expressed  by  the  testator 
is  to  give  to  A.  an  estate  for  Life,  to 
A.'s  eldest  son  another  estate  for 
Life,  and  so  on,  the  Court  will  carry 
that  intention  into  effect  as  nearly 
as  it  can,  by  giving  to  A.  an  estate 
for  life,  and  to  his  eldest  son,  if  un- 
born at  the  death  of  the  testator, 
an  estate  in  tail  male,  or,  if  he  be 
alive  at  the  death  of  the  testator, 
an  estate  for  life,  with  a  remainder 
to  his  eldest  son  in  tail  male."  L.  R. 
4  Eq.  446.  It  is  conceived,  how- 
ever, that  the  doctrine  of  cy  pres 
can  be  applied  only  when  the  in- 
tention is  clear  that  all  the  issue 


CONSTRUCTION.  513 

to  executory  trusts;  and  this  declaration  was  approved  in 
Hampton  v.  Holman.1 

§  653.  If  the  effect  of  applying  the  doctrine  of  cy  pres  might 
be  to  give  an  interest  as  heir  in  tail  to  a  person  to  whom  no 
estate  for  life  is  given,  it  will  not  be  applied.  Thus  in  Seaward 
v.  Willock*  where  there  was  a  devise  to  A. and  his  issue  for  ten 
generations  successively  for  life,  although  only  the  estate  of  A. 
was  in  question,  it  is  conceived  that  his  children  could  not  have 
taken  an  estate  tail  by  cy  pres.3  So  if  the  effect  of  applying 
the  doctrine  of  cy  pres  is  to  exclude  a  person  to  whom  a  life 
estate  is  given,  it  will  not  be  applied.4 

§  654.  If  the  issue  take  successively  leasehold  estates  deter- 
minable  by  death,  the  doctrine  of  cy  pres  will  not  be  applied.5 

§  655.  It  has  been  sometimes  supposed  that  when  a  series 
of  life  estates  is  given  to  A.  and  to  successive  generations  of  his 
issue,  it  is  A.  who  takes  the  estate  tail  by  cy  pres,  and  not  the 
first  generation  of  unborn  issue;  but  this,  it  is  conceived,  is 
erroneous,  and  contrary  to  the  true  principles  which  govern 
the  doctrine  of  cy  pres.6 

§  656.  The  difficulty  has  arisen  from  not  distinguishing  these 
cases  from  those  in  which  an  estate  of  inheritance  is  clearly 
given  to  A.,  but  coupled  with  a  provision  that  the  tenants  shall 
hold  for  life.  A.  in  those  cases  takes  an  estate  tail,  not  by  cy 
pres,  but  by  rejecting  the  words  which  are  repugnant  to  an 

are  to  take,   and  not  merely  the  *  See   §  647,  ante;  Lewis,  Perp. 

eldest  in  each  generation.     §  653,  433;  Prior,  Lim.  §  87;  Sugd.  Pow. 

post.    Probably  the  Master  of  the  (8th  ed.)  498,  note;  Fearne,  C.  R. 

Rolls,  in  this  somewhat  carelessly  208,  Butler's  note;  Monypenny  v. 

put  instance,  had  no  intention  of  Dering,  2  De  G.  M.  &  G.  145,  178. 

suggesting  the  contrary.  *  In  re  Rising,  [1904]  1  Ch.  533. 

1  5  Ch.  D.  183,  190,  191.     See  5  Somerville    v.    Lethbridge,    6 

In  re  Richardson,  [1904]  1  Ch.  332,  T.  R.  213.    Beard   v.  Westcott,  5 

340;  Lewis,  Perp.  434,  435;  Theob.  Taunt.  393;  5  B.  &  Aid.  801;  T.  & 

Wills  (7th  ed.)  612;  1  Jarm.  Wills  R.  25.     Lewis,  Perp.  441.     Prior, 

(6th  ed.)  290,  note  (<) ;  17  Harv.  Law  Lim.  §  92. 

Rev.    559.     Cf.    Manning   v.    An-  •  And  see    1    Jarm.  Wills  (6th, 

drews,  1  Leon.  256,  258.  ed.)  289. 

1  5  East,  198. 


514 


THE   RULE   AGAINST  PERPETUITIES. 


estate  of  inheritance.1  So  when  the  estate  tail,  although  not 
expressly  given,  arises  by  implication.2 

§  657.  In  Wollen  v.  Andrews  3  the  first  taker,  a  child,  was 
given  an  estate  tail,  but  this  was  because  the  life  estates  to 
the  unborn  grandchildren  were  held  too  remote,  an  error  long 
since  exploded;4  besides,  in  this  case  the  child  took  an  estate 
tail  by  implication,  as  pointed  out  by  Best,  C.  J.,  without  any 
aid  from  cy  pres.6 

§  658.  In  Forsbrook  v.  Forsbrook  6  the  testatrix  devised  land 
to  her  nephews  C.  and  T.  during  their  lives,  and  after  their 
death  it  was  her  will  that  their  eldest  sons  should  inherit  the 
land  during  their  lives,  and  so  on,  the  eldest  sons  of  the  two 
families  to  inherit  the  land  forever;  each  two  of  the  succeed- 


1  Doe  d.  Cotton  v.  Stenlake,  12 
East,  515.     Reece  v.  Steel,  2  Sim. 
233.     Hugo  v.  Williams,  L.  R.  14 
Eq.  224.     1  Jarm.  Wills  (6th  ed.) 
289.      See    Monkhouse    v.    Monk- 
house,  3  Sim.  119;  Mackworth  v. 
Hinxman,  2  Keen,  658  (cf.  Ker  v. 
Dungannon,  1  Dr.  &  W.  509,  537, 
538;  Sugd.  Law  of  Prop.  341,  note); 
Thompson   v.   Thompson,    1   Coll. 
381,  388;  Towns  v.  Wentworth,  11 
Moore,  P.  C.  526,  545;  Forsbrook 
v.  Forsbrook,  L.  R.  3  Ch.  93. 

2  Mortimer  v.  West,  2  Sim.  274 
(in  which   the  application  of  the 
doctrine  of  cy  pres  is  expressly  nega- 
tived.    Pp.  282,  283).     Brooke  v. 
Turner,   2   Bing.   N.   C.   422    (see 
Lewis,   Perp.   444  416).     Trash  v. 
Wood,  4  Myl.  &  Cr.  324  (see  Lewis, 
Perp.  446,  447).    Prior,  Lim.  §§86, 
264.     But  see   Lewis,   Perp.   444, 
note.     Cf.  Monypenny  v.  Bering, 
2  De  G.  M.  &  G.  145,  177-179. 

Goodtitle  d.  Cross  v.  Woodhull, 
Willes,  592,  did  not  call  for  any  ap- 
plication of  cy  pres  at  all.  It  was 
simply  an  instance  of  the  applica- 
tion of  the  Rule  in  Shelley's  Case. 


See  Lewis,  Perp.  447-450.  Cf. 
Prior,  Lim.  §  86.  So  In  re  Rich- 
ardson, [1904]  1  Ch.  332,  raised  no 
question  of  the  application  of  cy 
pres.  The  point  decided  was  that 
the  first  tenant  for  life  (a  living 
person)  did  not  take  an  estate  tail 
by  implication,  there  being  no  gift 
over  in  default  of  issue. 

»  2  Bing.  126. 

4    §  232,  ante. 

8  See  Lewis,  Perp.  442,  443. 
The  treatment  of  the  question 
when,  on  the  one  hand,  the  first 
taker  is  to  have,  either  expressly  or 
by  implication,  an  estate  tail,  and 
when,  on  the  other  hand,  unborn 
children  are  to  take  estates  tail  by 
cy  pres,  by  Mr.  Lewis,  is  not 
marked  by  his  wonted  clearness. 
It  is  confused  by  the  mistaken 
theory  —  afterwards  abandoned  by 
him,  Suppl.  27  et  seq.  —  that  the 
Rule  against  Perpetuities  is  to  be 
applied  to  the  state  of  things  at  the 
date  of  the  will,  and  not  at  the  time 
of  the  testator's  death.  Lewis, 
Perp.  441  et  seq. 

•  L.  R.  3  Ch.  93. 


CONSTRUCTION.  515 

ing  inheritors  to  inherit  it  free  from  any  incumbrance.  A 
bill  was  brought  to  obtain  the  opinion  of  the  Court  whether 
the  nephews  C.  and  T.  could  commit  waste.  The  Lords 
Justices  decided  that  the  nephews  had  only  life  estates  in 
possession,  and  therefore  could  not  commit  waste.  This  was 
the  point  before  them,  but  they  also  went  on  and  declared 
that  the  nephews'  life  estates  were  followed  by  remainders  to 
their  eldest  sons  for  life,  remainder  to  themselves  in  tail.1 
The  case  was  not  argued  nor  decided  on  any  cy  pres  ground. 
Indeed,  Holt,  L.  J.,  said:  "I  think  that  effect  may  be  given 
to  all  the  words  of  the  will,  without  having  recourse  to  the 
doctrine  of  cy  pres."  At  the  end,  however,  of  his  opinion, 
after  saying  that  the  nephews  took  life  estates,  remainder  to 
their  eldest  sons  for  life,  remainder  to  the  nephews  them- 
selves in  tail  male,  he  added:  "The  same  result  would  be 
arrived  at  if  we  held  it  to  be  a  perpetual  succession  of  life 
estates  —  which  we  might  have  done  if  it  had  not  been  for 
the  direction  respecting  incumbrances  —  and  then  applied  the 
doctrine  of  cy  pres,  which  would  give  the  nephews  an  estate 
in  tail  male."  2 

§  659.  The  Lord  Justice  cannot  have  meant  that  by  cy 
pres  the  nephews  could  have  taken  an  estate  tail  in  possession; 
for  the  "result"  was  that  they  took  an  estate  for  life  in  posses- 

1  This  had  been  the  contention  mainder  in  tail  in  the  tenant  for 

on  neither  side.     The  counsel  for  life,"  "transgressed  the  well-estab- 

the  nephews  urged  that  they  had  lished  rule  of  the  Court,"  and  was 

estates  tail  in  possession;  the  coun-  "a  mere  slip." 
eel  for  the  eldest  sons  of  the  nephews  z  In  16  W.  R.  290,  291,  the  only 

argued  that  their  clients  were  en-  other  place  where  the  case  seems  to 

titled  to  estates  tail  in  remainder.  be  reported,  the  language  is:  "A 

In  Hampton  v.  Holman,  5  Ch.  D.  perpetual  succession  of  life  estates 

183,  187,  Sir  George  Jessel,  M.  R.,  would    have    produced    the    same 

speaking    of    Forsbrook    v.    Fors-  effect,  and  might  be  adopted  as  the 

brook,  remarks  that  thus  to  go  on  true  construction  but  for  the  words 

and  declare  the  rights  of  parties  as  to  taking  the  property  free  from 

when   immediate   relief   could   not  incumbrances,  and  then,  by  apply- 

be  given  was  against  the  settled  ing  the  doctrine  of  cy  pres,  you 

law  of  the  Court;  that  to  decide  would  arrive  at  the  same  result." 
that   "there  was  an  ultimate  re- 


516  THE   RULE   AGAINST  PERPETUITIES. 

sion,  remainder  to  their  eldest  sons  for  life,  remainder  to 
themselves  in  tail;  and  the  real  point  in  issue  was  that  the 
nephews  did  not  take  an  estate  tail  in  possession,  and  therefore 
could  not  commit  waste.  Whatever  the  Lord  Justice  meant, 
he  could  not  have  meant  that  by  cy  pres  the  first  of  a  series 
of  life  tenants  can  take  an  immediate  estate  tail. 

§  660.  He  probably  used  the  term  "cy  pres,"  not  as  mean- 
ing a  method  of  modifying  a  testator's  intention  when  it  comes 
in  conflict  with  the  Rule  against  Perpetuities  (which  is  the 
meaning  commonly  attributed  to  it,  and  which  it  bears  in  this 
chapter),  but  as  meaning  a  method  of  harmonizing  two  con- 
flicting intentions.  What  he  apparently  meant  was  that  when 
there  are  limitations  to  certain  only  of  A.'s  issue,  and  yet  it 
is  clear  that  the  testator  wishes  the  estate  not  to  go  over  until 
A.'s  issue  is  exhausted,  A.,  to  effectuate  this,  will  be  held  to 
have  an  estate  tail  in  remainder  after  the  limitations  to  the 
particular  issue.1  This  is  the  meaning  attributed  to  him  by 
Jessel,  M.  R.,  in  Hampton  v.  Holman.2 

§  661.  The  American  cases  involving  any  question  of  cy 
pres  are  few.  In  Wood  v.  Griffin 3  there  was  a  devise  to  J. 
for  life,  remainder  to  J.'s  children  and  the  survivors  of  them 
for  life,  remainder  to  the  grandchildren  of  J.  in  fee  simple. 
It  was  held  that  the  children  of  J.  took  only  life  estates.  It 
was  not  suggested,  apparently',  that  the  doctrine  of  cy  pres 

1  See  In  re  Rising,  [1904]  1  Ch.  unborn  son  should  not   take   the 

533.    Cf.  Doe  d.  Gallini  v.  Gallini,  estate  for  life  as  it  is  given  to  him. 

5  B.  &  Ad.  621;  3  A.  &  E.  340;  2  If    the    ulterior    gifts    require    an 

Jarm.  Wills  (6th  ed.)  1978.  estate  tail  in  the  parent,  it  may  be 

1  5  Ch.  D.  183,  193,  194.  by  way  of  remainder  after  the  son's 

In  1  Jarm.  Wills  (5th  ed.)  267,  life  estate,  as  suggested  by  Rolt, 

note  (u),  it  is  said  that  the  cy  pres  L.  J.,  Forsbrook  v.  Forsbrook,  L.  R. 

doctrine  "never  has  been  applied  so  3   Ch.  99."    But    this  estate   tail 

as  to  give  an  immediate  estate  tail  to  is  given  to  the  parent  because  of 

a  person,  born  in  the  testator's  life-  "the  ulterior  gifts,"  not  because  of 

time,  who  by  the  will  is  expressly  the  doctrine  of  cy  pres,  as  that  term 

made    devisee    for    life,    with    re-  is  commonly  and  technically  used, 

mainder  to  his   (unborn)   son  for  See  1  Jarm.  Wills  (6th  ed.)  259. 
life.     There  is  no  reason  why  the  J  46  N.  H.  230. 


CONSTRUCTION.  517 

could  be  applied;  and  it  clearly  could  not,  both  because  the 
grandchildren  took  fees  simple,1  and  also  because  they  seem 
to  have  taken  per  capita? 

§  662.  Allyn  v.  Mather.3  Here  there  was  a  devise  to  the 
testator's  son  for  life,  remainder  to  the  testator's  grandsons  A. 
and  B.  during  their  lives,  "and,  after  their  decease,  to  each 
of  the  eldest  sons;  and  so  from  eldest  son  or  sons  forever; 
and  in  case  they  should  have  none,  to  the  eldest  male  child  of 
any  of  my  [the  testator's]  sons;  and  so  from  eldest  to  eldest 
to  the  end  of  time."  A.  had  three  sons,  E.,  H.,  and  R.  E. 
died  before  A.,  leaving  a  daughter,  M.  H.  had  died  before  the 
testator,  leaving  sons  and  daughters.  On  the  death  of  A.,  R. 
brought  ejectment  against  M.  Three  judges  thought  that  by 
"eldest  son"  of  A.  the  testator  meant  the  "eldest  living  at 
the  death  of  A.,"  and  consequently  that  R.  was  entitled  to 
recover.  Daggett,  J.,  dissenting,  held  (semble  correctly)  that 
eldest  meant  "eldest  born,"  and  that  consequently  R.  was  not 
entitled.  All  that  was  necessary  to  decide  was  that  R.  was 
entitled  to  the  seisin  as  tenant  for  life,  but  the  judges  who 
thought  him  entitled  said  that  he  took  an  estate  tail  by  cy  pres. 
This,  on  their  construction,  seems  questionable,  to  say  the 
least.  If  the  eldest  son  of  A.  means  the  eldest  surviving,  the 
eldest  son  of  such  eldest  son  must  mean  the  eldest  surviving; 
consequently  the  expressions  of  the  will  exclude  the  eldest  son 
of  an  eldest  born  son,  if  the  latter  has  died  before  his  father. 
That  is,  if  R.  should  have  had  two  sons,  N.  and  O.,  and  N.  had 
died  before  R.  leaving  a  son  P.,  O.  would  take  the  estate  on 
the  death  of  R.,  and  P.  would  be  excluded.  But  if  R.  had  an 
estate  tail  by  cy  pres,  P.  would  take  by  descent.  Consequently 
as  an  estate  tail  by  cy  pres  would  include  persons  whom  the 
terms  of  the  will  did  not  include,  it  could  not  be  applied.4 

§  663.  Mr.  Justice  Daggett,  who  thought  that  the  first-born 
son  E.  was  entitled,  was  of  opinion  that  he  took  an  estate 
tail  male  by  cy  pres.  There  is  more  reason  for  this  view,  for 

1  §  647,  ante.  »  9  Conn.  114. 

z  §  650,  note,  ante.  '  §  647,  ante. 


518  THE   BULB   AGAINST  PERPETUITIES. 

it  is  a  possible,  although  a  very  strained,  construction  to  hold 
that  all  the  issue  male  of  E.  were  to  take.  But  it  is  hard  to 
see  how  cy  pres  can  ever  be  properly  applied  in  Connecticut; 
for  by  a  statute  in  that  State  1  "every  estate,  given  in  fee  tail, 
shall  be  an  absolute  estate  in  fee  simple,  to  the  issue  of  the 
first  donee  in  tail."  Consequently  any  attempt  to  construe  a 
devise  cy  pres  lets  in  persons  to  whom  nothing  is  given  by 
the  will.2 

§  664.  Jackson  v.  Brown.3  Here  there  was  a  devise  to  A. 
for  life,  remainder  to  the  first  son  of  A.  for  life,  remainder  to 
the  first  and  every  other  son  and  sons  of  such  first  son  of  A. 
successively  in  tail  male.  A.  was  unmarried  at  the  testator's 
death.  It  was  held  that  the  eldest  son  of  A.  took  an  estate 
tail  male  by  cy  pres.  This  was  an  instance  of  the  normal 
application  of  the  doctrine.4 

§  665.  St.  Amour  v.  Rivard.*  A  testator  devised  to  his 
son  L.,  "his  life  lasting,  the  use  and  benefit"  of  certain  land, 
and  made  other  like  devises.  He  added:  "It  is  well  to  be 
understood  that  all  and  every  single  disposal  of  real  estate 
made  in  this  my  testament,  is  only  for  the  use  and  benefit  of 
him  or  her  in  whose  favor  it  is  made,  his  or  her  life  lasting, 
and  that  it  is  my  formal  will  that  neither  my  real  estate  nor 
any  parcel  thereof,  will  ever  be  sold  or  alienated  in  whatso- 
ever manner  —  but  that  after  the  decease  of  those  several  to 
which  shares  or  parcels  of  my  real  estate  have  been  assigned, 
the  said  shares  or  parcels  will  remain  for  the  use  and  benefit 
of  the  descendants  of  him  or  her  to  whom  a  share  has  been 
assigned,  their  lives  lasting,  and  so  on,  and  in  case  of  demise 

»  Rev.  of  1875,  tit.  18,  c.  6,  pt.  4  The  testator  died  in  1780,  and 

1,  §  3,  p.  352  (confirmatory,  it  is  the  New  York  statute  turning  es- 

said  of  the  common  law  of  the  State.  tates  tail  into  fee  simple  was  not 

Wells  v.  Olcott,  Kirby,  118.  Chap-  passed  till  Feb.  23,  1786,  so  that 

pel  v.  Brewster,  Id.  175.  Hamilton  the  considerations  arising  under 

v.  Hempsted,  3  Day,  332).  Allyn  v.  Mather,  .9  Conn.  114,  §  663, 

*  §647,  ante;  §§665,  667,  669,  ante,  are  not  applicable  to  this 

post.  case. 

»  13  Wend.  437.  *  2  Mich.  294. 


CONSTRUCTION.  519 

without  posterity,  the  said  share  shall  accrue  to  the  use  and 
benefit  of  the  owner  or  of  the  owners  being  of  my  relation  or 
descendants,  their  life  lasting,  of  the  next  share  or  shares, 
and  so  long  as  any  posterity  will  exist,  and  in  case  of  extinc- 
tion to  the  next  heirs."  The  persons  to  whom  these  devises 
were  made  were  the  children  and  heirs  at  law  of  the  testator, 
and  they  transferred  all  then*  interest  to  the  plaintiff.  The 
Court  held  that  the  plaintiff  took  the  entire  title  to  the  estate, 
and  consequently  must  have  been  of  opinion  that  the  children 
took  the  entire  interest  in  the  land.1  The  Court  held  that 
the  doctrine  of  cy  pres  did  not  apply;  and  although  the  reason- 
ing is  not  very  clear,  this  ruling  seems  correct,  for  by  statute 
in  Michigan2  "all  estates  tail  are  abolished  and  every  estate 
which  would  be  adjudged  a  fee  tail"  according  to  the  law  of 
Michigan  before  1821  "shall  for  all  purposes  be  adjudged  a  fee 
simple."  To  give  the  first  issue  of  the  children  an  estate 
hi  fee  simple  would  let  in  persons  to  whom  no  interest  was 
given  by  the  will,  and  consequently  the  doctrine  of  cy  pres 
could  not  be  applied.3 

§  666.  Gibson  v.  McNeely.*  A  testator  devised  land  to 
three  persons,  children  of  his  deceased  sister,  for  their  lives, 
and  at  the  death  of  any  of  the  devisees  who  should  have  taken 
for  life  he  gave  his  share  to  his  issue,  share  and  share  alike, 
for  their  lives  respectively;  and  again,  at  the  death  of  the 
issue  last  aforesaid,  or  any  of  them,  he  devised  the  respective 
share  of  said  issue  to  the  issue  of  such  issue  or  any  of  them, 
share  and  share  alike,  for  their  lives,  "and  in  this  manner, 

1  A    possible    construction,    on  brook  v.   Forsbrook,  L.  R.  3  Ch. 

which  the  decision  can  be  sustained,  93;  §§  658-660,  ante. 
is  that  there  was  a  gift  in  tail  to  *  2  Comp.  Laws  (1871),  §  4070. 

the  children,   enlarged  by  statute  *  §§  647,  663,  ante;  §§  668,  669, 

into  a  fee.      See   §§  249   a,   note  post.    The  statement  of  St.  Amour 

2,   656,   ante.      But    whether   the  v.  Rivard,  contained  in  2  Am.  L.  C. 

grandchildren    did    not    take    life  in  Real  Prop.  488,  489,  is  obscure. 
estates   with    remainders  to   their  *  11  Ohio  St.  131,  affirming  s.  c. 

parents  in  fee,  quaere.     See  Fors-  «u6  nom.  Gibson  v.  Moulton,  2  Dis- 
ney, 158. 


520  THE  RULE  AGAINST  PERPETUITIES. 

down  in  entailment  as  far  as  may  be  allowed  by  the  statute  in 
such  case  made  and  provided."  It  was  held  that  the  issue  of 
the  children  took  estates  tail.  The  attention  of  the  Court 
was  mainly  directed  to  another  question. 

§  667.  In  this  case  there  appear  to  have  been  no  cross  re- 
mainders, and  consequently  persons  might  take  by  descent, 
under  an  estate  tail  to  the  issue,  created  by  cy  pres,  an  inter- 
est in  the  whole  estate  which  was  not  given  to  them  by  the 
words  of  the  will;  and  therefore,  it  would  seem,  the  doctrine 
of  cy  pres  ought  not  to  have  been  applied.1 

§  668.  Again,  by  a  statute  of  Ohio,2  borrowed  apparently 
from  that  of  Connecticut,3  "all  estates  given  in  tail  shall  be 
and  remain  an  absolute  estate  in  fee  simple,  to  the  issue  of 
the  first  donee  in  tail; "  and  therefore  an  estate  tail  given 
to  the  sister's  grandchildren  might  go  to  persons  to  whom 
nothing  was  given  by  the  will,  and  for  this  reason  also  the 
doctrine  of  cy  pres  ought  not  to  have  been  applied.4 

§  669.  In  short,  as  the  essence  of  the  doctrine  of  cy  pres 
consists  in  giving  an  estate  tail,  and  as  to  give  an  estate  in 
fee  simple  by  cy  pres  violates  the  fundamental  principle  that 
you  cannot  by  cy  pres  let  in  persons  to  whom  the  will  gives 
nothing,  it  would  seem  as  if  the  doctrine  had  no  scope  in 
America,  save  in  those  comparatively  few  jurisdictions  —  e.  g. 
Maine,  Massachusetts,  Rhode  Island,  —  where  estates  tail  still 
exist.6 

§  670.  In  Doe  d.  McDonnell  v.  Mclsaac 6  and  Ferguson  v. 
Ferguson  7  the  term  cy  pres  is  used  loosely. 

1  §  647,  ante.  B  §§647,  663,  665,  668,  ante. 

»  St.  1811,  c.  260;  2  Gen.  Code          •  1  Hasz.  &  Warb.    353,    360; 

(1910),  §  8622.  Peters  (P.  E.  I.)  236,  241. 

»  §  663,  ante.  *  39  U.  C.  Q.  B.  232.     On  ap- 

«  §§647,  663,  665,  ante;  §  669,  peal,  1  Ont.  Ap.  452;  2  Can.  S.  C. 

post.    And  see  Phillips  v.  Herron,  497. 
65  Ohio  St.  478. 


ACCUMULATIONS.  521 


CHAPTER  XX. 
ACCUMULATIONS.1 

§  671.  WHEN  a  settlor  or  testator  directs  income  to  be 
accumulated,  and  it  is  a  condition  precedent  to  the  right  of 
enjoying  the  income  that  the  period  fixed  for  the  determination 
of  accumulation  should  arrive,  then,  if  this  period  may  fall 
beyond  the  limits  of  the  Rule  against  Perpetuities,  the  gift 
of  the  accumulated  income  is  too  remote.  Thus,  if  there 
be  a  direction  in  a  will  to  accumulate  the  income  of  property 
for  fifty  years,  and  at  the  end  of  the  time  pay  the  accumu- 
lated fund  to  those  who  shall  then  be  the  heirs  of  the  testator, 
the  gift  is  void,  and  those  persons  will  be  entitled  to  the  prop- 
erty who  would  have  been  entitled  to  it  had  the  direction  to 
accumulate  and  the  gift  of  the  accumulated  fund  both  been 
omitted  from  the  will.2  The  gift  of  the  accumulated  fund  is, 
as  has  been  said,  void;  the  direction  to  accumulate  is  also  to 
be  disregarded,  and  this  can  be  done  on  either  of  two  theories. 
It  may  be  said  that  the  trust  to  accumulate  exists  only  for 
the  sake  of  the  gift  of  the  accumulated  fund,  and  as  the  gift 
is  void,  the  trust  to  accumulate  fails  also;  or  the  trust  to 
accumulate  may  be  regarded  as  still  existing,  but  as,  subject 
to  this  trust,  the  property  is  in  the  heir  or  next  of  kin  or  re- 
siduary devisee  or  legatee,  this  latter  can  at  once  put  an  end 
to  the  trust,  as  explained  in  the  following  section. 

§  672.  If  the  person  to  whom  the  accumulated  income  is 
to  be  paid  has  a  vested  indefeasible  right  to  the  possession  of 

1  See  Scott's  Trusts  for  Accumu-  *  Baker  v.  Stuart,  28  Ont.  439. 

lation,   printed  at  the  end  of  an      Rogers's  Estate,  18  Phila.  99. 
American  edition  (1888)  of  Lewin 
on  Trusts. 


522  THE  RULE  AGAINST  PERPETUITIES. 

the  principal  or  the  accumulations,  then  the  direction  to  accu- 
mulate is  an  illegal  restraint  on  alienation,  and  such  person 
can  put  an  end  to  the  accumulation  at  any  time.  Conse- 
quently such  direction,  being  destructible  by  him  at  any  time 
cannot  be  too  remote; *  and  the  result  is  the  same,  although 
such  person  is  not  in  existence  or  ascertained  at  the  date  of 
the  gift,  if  he  must  come  into  existence  or  be  ascertained,  if  at 
all,  and  have  a  vested  right  to  possession,  within  the  limits  of 
the  Rule  against  Perpetuities.2  This  seems  to  be  the  ground 
on  which  the  accumulation  in  Otis  v.  Coffin 3  is  to  be  sustained, 
although  the  objection  of  remoteness  does  not  appear  to  have 
been  raised  in  that  case.  In  Tregonwell  v.  Sydenham  *  a  trust 
to  accumulate  which  might  last  sixty  years  was  held  good, 
apparently  because  it  might  be  terminated  at  any  time  by  the 
heir,  to  whom  the  House  of  Lords  held  there  was  a  resulting 
trust.8 

§  673.  The  tendency  of  the  courts  being  to  construe  limi- 
tations as  vested,  the  arrival  of  the  period  fixed  for,  or  needed 
for,  the  accumulation  will  not  be  deemed  a  condition  precedent 
to  the  gift  of  the  accumulated  fund,  unless  the  language  em- 
ployed requires  such  a  construction.8 

§  674.  If  the  accumulation  is  a  condition  precedent,  and 
the  time  of  accumulation  is  or  may  be  too  long,  the  gift  of  the 

1  Kimball  v.  Crocker,    53    Me.  time,   and  the  connection  of  this 

263.    Rogere's  Estate,  179  Pa.  602.  local  doctrine  with  the  Rule  against 

MacVean    v.    MacVean,    24    Viet.  Perpetuities  is  discussed,    §§  121  c 

L.  R.  835.    Cain  v.  Watson,  [1910]  et  seq.,  ante. 

Viet.   L.   R.   256,  272,  273.     See          *  Phipps  v.  Kelynge,  2  V.  &  B. 

Chap.    IV.,    ante;    §692,    post;    1  57,    note.      See    Southampton    v. 

Jarm.  Wills  (6th  ed.)  303;  Gray,  Hertford,  2  V.  &  B.  54,  62,  63. 
Restraints  on  Alienation  (2d  ed.),  '  7  Gray,  511. 

§§  105  et  seq.,  297-299.    Cf.  In  re          *  3  Dow,  194. 
Trevanion,  [1910]  2  Ch.  538.     The  •  See  §§  414,  419-422,  ante. 

doctrine  peculiar  to  Massachusetts          '  Oddie  v.  Brown,  4  De  G.  &  J. 

and  Illinois  that  the  enjoyment  of  a  179;  reversing  s.  c.  28  L.  J.  Ch. 

present  vested  equitable  fee  can  be  542;  4  Jur.  N.  s.  605.     See  4  Jur. 

postponed,   and  accumulation  ac-  N.  s.  pt.  2,  337;  In  re  Wood,  [1894] 

cordingly  permitted  in  the  mean-  2  Ch.  310,  316. 


ACCUMULATIONS.  523 

accumulated  fund  is  bad  altogether.  The  settlor  or  testator 
has  said  that  the  gift  shall  vest  at  a  certain  time  or  on  a  cer- 
tain event.  The  courts  cannot  substitute  a  shorter  time  or  a 
speedier  event.1 

§  675.  Although  certain  persons  or  classes  of  persons  will, 
within  the  limits  of  the  Rule  against  Perpetuities,  be  entitled, 
by  their  joint  action,  to  stop  an  accumulation  and  alienate  the 
fund,  yet  the  gift  of  the  accumulated  fund  will  be  bad  for  re- 
moteness, unless  within  those  limits  their  relative  rights  are 
ascertained.  Thus  where  rents  were  to  be  accumulated  until 
the  expiration  of  a  leasehold  interest  in  other  land  which  had 
sixty  years  to  run,  and  then  so  much  of  the  accumulations  as 
was  necessary  was  to  be  spent  in  renewing  the  lease  for  the 
benefit  of  A.,  and  the  balance  to  be  paid  to  B.,  it  was  held  that 
the  gift  of  the  balance  was  too  remote,  although  A.  and  B. 
together  could  at  any  time  put  an  end  to  the  accumulation.2 
This  is  an  instance  of  the  general  principle  discussed  in  Chap- 
ter VII.,  that  present  power  to  alienate  is  not  the  true  test  of 
the  validity  of  a  future  limitation.  Of  course,  where  the  inter- 
ests of  all  parties  are  defined  and  vested,  —  e.  g.  to  A.  for  life, 
remainder  to  B.  in  fee,  —  there  a  provision  for  accumulation 
is  not  obnoxious  to  the  objection  of  remoteness.3 

1  Southampton    v.    Hertford,   2  &  C.  C.  C.  237,  243;  Lewis,  Perp. 

V.  &  B.  54.    Marshall  v.  Holloway,  Suppl.  190.    On  trusts  for  accumu- 

2  Swanst.  432.    Vawdry  v.  Geddes,  lation  in   connection  with  estates 

1  Russ.  &  M.  203.    Curtis  v.  Lukin,  tail,  see  §§  462  et  seq.t  ante. 

5  Beav.  147.     Boughton  v.  James,  A   provision   for   accumulation, 

1  Coll.  26,  45;  sub  nom.  Boughton  good  at  common  law,  but  contrary 

v.  Boughton,  1  H.  L.  C.  406.    Scans-  to  the  Thellusson  Act,  will  be  sus- 

brick  v.  Skelmersdale,  17  Sim.  187.  tained  so  far  as  it  does  not  violate 

Turvin  v.  Newcome,  3  K.  &  J.  16.  that  Act.     §  687,  post. 

Andrews  v.  Lincoln,  95  Me.  541.  *  Curtis  v.  Lukin,  5  Beav.  147. 

Thorndike  v.  Loring,  15  Gray,  391.  See    Beaumont   v.    Sowter,    19   S. 

Gerber's    Estate,     196    Pa.     366.  Aust.  93. 

Smith  v.  Cunninghame,   13  L.  R.  *  Phipps  v.  Kelynge,  2  V.  &  B. 

IT.    480.      Lewis,    Perp.    593-596;  57,  note,  before  Lord  Camden,  C., 

Suppl.  183  et  seq.    Harg.  Thel.  Act,  as  explained  by  Sir  William  Grant 

§74.    3  Dav.  Conv.  (3d  ed.)  465,  in  Southampton  v.  Hertford,  2  V. 

note.    See  Crosse  v.  Glennie,  2  Y.  &  B.  54,  62,  63. 


524  THE   BULB  AGAINST  PERPETUITIES. 

§  676.  Income  is  sometimes  directed  to  be  accumulated  for 
the  payment  of  a  testator's  debts.  This  gives  the  creditors  an 
immediate  present  charge  on  the  property,  and  they  can  stop 
the  accumulation  at  once.  The  direction  to  accumulate,  being 
therefore  destructible,  is  not  void  for  remoteness.1  So,  when 
rents  are  to  be  accumulated  to  pay  a  legacy  to  a  person  in 
being.2 

§  676  a.  When  a  testator  directs  that  personal  property 
and  its  accumulated  income  shall  be  invested  in  land,  or  that 
land  and  the  accumulated  rents  be  sold,  and  the  proceeds  in- 
vested in  personalty,  the  courts  allow  the  accumulation  for 
only  one  year.  Whether  this  rule  be  one  of  construction  or 
of  convenience,  so  called,  may  be  doubtful,  but  it  is  well  set- 
tled, and  prevents  such  provisions  raising  any  question  of 
remoteness.3 

§  676  6.  The  Statute  of  44  and  45  Viet.  (1881),  c.  41,  §  42, 
allows  accumulation  during  any  period  of  minority.4 

§  677.  It  has  been  shown  in  the  chapter  on  Charitable 
Trusts 5  that  when  the  happening  of  a  remote  event  is  a  condi- 
tion precedent  to  a  gift  for  charity,  the  gift  is  void;  so  if  there 


1  Southampton    v.   Hertford,    2  Griffith  v.  Morrison,  1  J.  &  W.  311, 

V.  &  B.  54,  65.    Bacon  v.  Proctor,  note.    Parry  v.  Warrington,  6  Mad. 

T.  &  R.  31.    Bateman  v.  Hotchkin,  155.     Kilvington  v.  Gray,  2  S.  & 

10  Beav.  426.     See  Scarisbrick  v.  S.  396.     Vickers  v.  Scott,  3  M.  & 

Skelmersdale,   17  Sim.  187;   §  467,  K.  500.     Vigor  v.  Harwood,  12  Sim. 

ante;  Tewart  v.  Lawson,  L.  R.  18  172.     Tucker  v.  Boswell,  5  Beav. 

Eq.   490;   In  re  Heathcote,  [1904]  607.    See  Stair  v.  Macgill,  1  Bligh, 

1  Ch.  826;  see  §  710,  post;  Morgan  N.  s.  662;  Greisley  v.  Chesterfield, 

v.  Morgan,  20  R.  I.  600;  1  Jarm.  13  Beav.  288;  1  Cooper,  Gas.  temp. 

Wills  (6th  ed.)  382.     Cf.   §§415-  Cottenham,  152  et  seq.;  Harg.  Thel. 

417,  486,  ante;  Briggs  v.  Oxford,  1  Act,    §  123;    Lewin,    Trusts    (10th 

De  G.  M.  &  G.  363.  ed.)  324,  325. 

8  Williams  v.  Lewis,  6  H.  L.  C.          4  On    the   Thellusson  Act   (St. 

1013.    Cf.  In  re  Wise,  [1896]  1  Ch.  39  &  40  Geo.  Ill,  c.  98)  and  the 

281;  Williams  v.  Herrick,  19  R.  I.  Accumulations  Act,    1892    (St.   55 

197.  &  56   Viet.   c.   58),   see    App.   B, 

»  Sitwell  v.  Bernard,  6  Ves.  520.  §§  686  et  seq.,  post. 
Entwistle   v.   Markland,    Id.    528,  •  §  605,  ante. 

note.  Stuart  t».  Bruere,  Id.  529,  note. 


ACCUMULATIONS. 


525 


is  a  direction  to  accumulate  income  for  fifty  years,  and  then,  if 
a  condition  precedent  has  been  complied  with,  pay  the  accumu- 
lated fund  to  a  charity,  the  gift  to  the  charity  will  be  void,  and 
the  direction  to  accumulate  void  or  destructible.1 

§  678.  But  where  there  is  an  unconditional  gift  to  charity, 
the  gift  will  be  regarded  as  immediate  and  good,  although  the 
particular  mode  of  carrying  out  the  charity  which  the  donor 
has  indicated  is  too  remote.2  Consequently  in  such  a  case  if 
a  direction  for  accumulation  is  invalid  the  only  result  is  that 
the  income  is  immediately  distributable  in  charity;  the  heirs 
or  next  of  kin  are  not  let  in.3 


1  Russell  v.  Girard  Trust  Co., 
171  Fed.  Rep.  161 ;  sub  nom.  Girard 
Trust  Co.  v.  Russell,  179  Fed.  Rep. 
446.  See  Chamberlayne  v.  Brockett, 
L.  R.  8  Ch.  206;  Rogers's  Estate, 
18  Phila.  99. 

*  §  607,  ante. 

1  Duggan  v.  Slocum,  92  Fed. 
Rep.  806.  Handley  v.  Palner,  103 
Fed.  Rep.  39.  Brigham  v.  Brigham 
Hospital,  126  Fed.  Rep.  796;  134 
Fed.  Rep.  513.  Martin  v.  Marg- 
ham,  14  Sim.  230.  Odell  v.  Odell, 
10  Allen,  1.  Dexter  v.  Harvard 
College,  176  Mass.  192.  Codman 
v.  Brigham,  187  Mass.  309.  Wood- 
ruff v.  Marsh,  63  Conn.  125,  137. 
Philadelphia  v.  Girard,  45  Pa.  9. 
Curran  v.  Philadelphia  Trust  Co., 
15  Phila.  84;  s.  c.  sub  nom.  Cur- 
ran's  Appeal,  4  Pennyp.  331.  Frank- 
lin's Estate,  27  W.  N.  C.  (Pa.) 
545.  Ingraham  v.  Ingraham,  169 
111.  432.  See  A.  G.  v.  Poulden, 
3  Hare,  555;  In  re  Swain,  [1905] 
1  Ch.  (C.  A.)  669;  Brooks  v.  Bel- 
fast, 90  Me.  318,  324;  American 
Academy  v.  Harvard  College,  12 
Gray,  582;  Tainter  v.  Clark,  5 
Allen,  66;  Grimke  v.  A.  G.,  206 
Mass.  49;  Williams  v.  Williams,  8 


N.  Y.  525,  538;  Levy  v.  Levy,  40 
Barb.  585,  618,  626;  33  N.  Y.  97; 
Smith's  Estate,  18  Pa.  C.  C.  209. 
Cf.  A.  G.  v.  Butler,  123  Mass.  304; 
Wilson  ».  Lynt,  30  Barb.  124; 
Shillington  v.  Portadown  Council, 
[1911]  1 1.  R.  247;  Parkhurstw.  Roy, 
7  Ont.  Ap.  614;  Ogilvie  t>.  Kirk 
Session  of  Dundee,  8  Dunlop,  C. 
of  Sess.  1229;  Maxwell  v.  Maxwell, 

5  Rettie,  C.  of  Sess.  248. 

In  Ewen  v.  Bannerman,  2  Dow 

6  Cl.  74;  sub  nom.  Ewen  v.  Magis- 
trates of  Montrose,  4  Wils.  &  Sh. 
346,  a  gift  of  property  to  accumu- 
late until  it  should  amount  to 
pounds,  and  then  to  be  employed  in 
erecting  and  maintaining  a  hospital 
for  the  support  and  education  of 
boys,    was   held   bad.     This   case 
could  be  supported,  according  to  the 
English  law,  only  on  the  view  (prot>- 
ably  incorrect)   that  the  gift  was 
conditional  on  the  sum  reaching  a 
certain  amount.    See  the  case  com- 
mented on  and  plainly  disapproved 
by  Lords  Chelmsford  and  Wensley- 
dale  in  Magistrates  of  Dundee  v. 
Morris,  3  Macq.  134,  144,  174. 

In   Hillyard   v.   Miller,    10   Pa. 
326,   there  was  a  devise  in  trust 


526 


THE   RULE   AGAINST   PERPETUITIES. 


§  679.  Whether  when  there  is  an  immediate  gift  to  a  charity 
a  direction  to  accumulate  the  income  is  void,  as  an  unlawful 
restraint  on  the  use  of  property,  is  not  entirely  clear.  In 
Harbin  v.  Masterman1  Sir  John  Wickens,  V.  C.,  held  that 
such  direction  was  not  in  itself  void  in  the  case  of  a  charity, 
and  his  decision  was  followed  in  Riddle's  Appeal*  Certainly 
the  reasons  for  not  allowing  restraints  on  indefeasible  interests 
vested  in  individuals 3  do  not  apply  so  strongly  to  charities; 
but  as  no  one  is  interested  in  raising  the  question  adversely 
to  the  charity,4  the  point  is  not  likely  often  to  come  up.  If 
the  purpose  of  the  trust  cannot  be  carried  out  without  accumu- 
lation for  too  long  a  period,  the  fund  may  be  applied  cy  pres.6 

§  679  a.  The  House  of  Lords,  affirming  a  decision  of  the 
Court  of  Appeal,  which  affirmed  a  decision  of  Stirling,  J.,  has 
now  held  that  all  directions  for  accumulating  the  income  of 
property  given  for  charitable  purposes  are  void  as  illegal  re- 
straints upon  the  use  of  property.6  The  Supreme  Judicial 


to  let  out  the  income  to  deserving 
young  farmers  and  mechanics,  by 
investing  it  in  bond  and  mortgage 
on  their  farms  and  houses,  and 
"should  it  so  happen  in  the  lapse 
of  time,  that  the  income  of  said 
estate-fund  should  accumulate  be- 
yond the  application  for  such 
loans,"  then  to  apply  the  income 
to  build  an  asylum.  The  Court 
held  that  the  trust  to  lend  money 
to  farmers  and  mechanics  was  not 
a  charity,  that  the  trust  for  ac- 
cumulation was  void,  and  that  the 
devise  failed.  Assuming  that  they 
were  right  hi  holding  that  the  trust 
for  lending  was  not  a  charity,  it 
followed  that  there  was  not  an  im- 
mediate gift  to  a  charity,  but  only 
a  gift  which  might  take  effect  at  a 
remote  period,  and  consequently 
that  the  gift  to  the  asylum  and 
the  trust  to  accumulate  were  in- 
Talid.  Hillyard  v.  Miller  is  ex- 


plained in  Philadelphia  v.  Girard, 
45  Pa.  9,  28,  29;  and  Curran  v. 
Philadelphia  Trust  Co.,  15  Phila. 
84;  s.  c.  sub  nom.  Curran's  Ap- 
peal, 4  Pennyp.  331.  See  Odell  v. 
Odell,  10  Allen,  1,  12;  and  cf.  Wit- 
man  v.  Lex,  17  S.  &  R.  88,  01. 

1  L.  R.  12  Eq.  559. 

1  99  Pa.  525,  reversing  s.  c.  sub 
nom.  Derbyshire's  Estate,  11  W.  N. 
C.  (Pa.)  22. 

*  See  Chap.  IV.,  ante. 
«  §  678,  ante. 

6  Martin  v.  Margham,  14  Sim. 
230;  and  see  Hawes  Place  Congre- 
gational Soc.  v.  Trustees  of  Hawes 
Fund,  5  Gush.  454;  Odell  v.  Odell, 
10  Allen,  1;  Harbin  v.  Masterman, 
L.  R.  12  Eq.  559,  565.  Cf.  Ogilvie 
v.  Kirk  Session  of  Dundee,  8  Dun- 
lop,  C.  of  Sess.  1229;  Maxwell  v. 
Maxwell,  5  Rettie,  C.  of  Sess.  248. 

•  Harbin  v.   Masterman,   [1894) 
2  Ch.  (C.  A.)  184;  s.  c.  on  appeal, 


ACCUMULATIONS.  527 

Court  of  Massachusetts l  has  held  that  "the  limits  of  an  accu- 
mulation for  the  benefit  of  a  charity  are  subject  to  the  order 
of  a  court  of  equity."  The  Supreme  Court  of  Errors  of  Con- 
necticut has  reached  the  same  result.2  The  doctrine  of  the 
House  of  Lords  seems  the  better.  The  trustees  of  a  charity 
are  not  bound  to  spend  the  income  of  the  charity  every  year;* 
they  can  lay  by  money  for  an  ulterior  purpose  just  as  an  indi- 
vidual can.  The  objection  to  allowing  a  charitable  fund  to 
accumulate  is  an  objection  of  public  policy,  and  it  would  seem 
better  that  the  matter  should  be  fixed  by  a  positive  rule  of  law 
than  left  to  the  discretion  of  judges.  The  discretion  which 
chancellors  exercise  is  a  discretion  in  arranging  the  claims 
of  one  individual  against  another,  not  in  settling  limits  to 
the  operation  of  rules  of  public  policy.  It  is  a  novel  head 
of  equity.4 

sub  rum.  Wharton  v.  Masterman,  125,  137,  138.      See  also  Harper  p. 

[1895]  A.  C.  186.    See  Trustees  Co.  Deposit  Co.,  11  Ohio  Dec.  240. 
v.  Bush,  28  N.  Z.  L.  R.  117.  *  See  Kinsey  v.  Kinsey,  26  Oat. 

*  St.  Paul's  Church  v.  A.  G.,  164  99,  101;  Lindsay's  Trustees,  [19111 

Mass.   188,   203,   204.     TUpley  v.  Session  Cases,  584. 
Brown,  218  Mass.  33.  *  See  the    Pennsylvania   St.  of 

»  Woodruff  v.  Marsh,  63  Conn.  April  26,  1855,  c.  12,  §  715,  post. 


APPENDIX. 


APPENDIX. 


A. 

CHARITIES  FOR  DEFINITE  PERSONS. 

680.  IT  has  often  been  said  that  a  charitable  trust  must  be  for 
an  indefinite  number  of  persons.1  Undoubtedly  in  most  cases  there 
is  no  defined  person  who  has  any  rights  under  a  charity.  But  there 
seem  to  be  some  cases  in  which  the  number  of  those  persons  who 
are  the  objects  of  a  trust  is  either  so  extended  or  so  limited  that 
they  form  a  definite  class  which  must  be  considered  as  having  rights, 
and  yet  the  trust  is  deemed  charitable. 

§  681.  Thus  a  gift  to  the  minister  of  a  church  forever  is  good.* 
So  to  a  schoolmaster.*  So,  perhaps,  for  a  lodge  of  freemasons.4 

§  682.  So  a  grant  of  land  for  those  inhabitants  of  a  village  who 
could  keep  three  cows,  to  pasture  there  part  of  the  year,  and,  for  the 
rest  of  the  year,  for  all  the  inhabitants  of  the  village  to  pasture,  was 
held  a  good  charitable  trust.8  And  a  grant  to  all  the  free  inhabit- 
ants of  ancient  tenements  in  a  borough  to  take  oysters  at  a  certain 
season  was  held,  in  a  much-considered  case,  to  be  a  good  charitable 

1  Jackson  v.  Phillips,  14  Allen,          *  King  v.  Parker,  9  Gush.  71. 

539,    556.     Russell  v.  Allen,    107  See   Anon.,    3    Atk.  277;    Vander 

U.  S.  163,  167.    2  Kent,  Com.  288,  Volgen  v.  Yates,  3  Barb.  Ch.  242; 

note  (a).    On  trusts  non-charitable  9  N.  Y.  219,  221,  227.     But  not 

with  indefinite  cestuis  que  trust  or  "for  the  benefit  of  individuals  who 

no  cestuis  que  trust  at  all,  see  App.  have  been  engaged  in  the  Oporto 

H,  §§  894  et  seq.,  post.  Red   or    Port    St.    Mary's    White 

1  A.  G.  v.  Cock,  2  Ves.  Sr.  273.  Sherry  Wine  Trade."    In  re  Gas- 

A.  G.  v.  Goddard,  T.  &  R.  348.  siot,  70  L.  J.  Ch.  242. 
A.  G.  v.  Dublin,  38  N.  H.  459.  5  Wright    v.    Hobert,    9    Mod. 

1  See  Cheeseman  v.  Partridge,  1  64. 
Atk.  436. 


532 


THE    RULE   AGAINST   PERPETUITIES. 


trust.1  And  a  gift  for  a  school  to  be  open  to  all  the  children  of  the 
neighborhood  is  a  charity.2 

§  683.  So  a  gift  to  poor  relations,  if  it  is  to  continue,  is  a  char- 
ity; 3  and  yet  the  number  of  poor  relations  may  be  reduced  to  one 
or  two,  and  it  seems  impossible  to  say  that  such  one  or  two  would 
not  have  a  right  to  relief.4 

§  684.  So  directions  that  founder's  kin  or  descendants  should  be 


1  Saltash  v.  Goodman,  5  C.  P.  D. 
431;  7  Q.  B.  D.  106;  sub  nom.  Good- 
man v.  Saltash,   7  Ap.  Cas.   633; 
§§  582,  583,  ante.    See  In  re  Christ- 
church  Inclosure  Act,   35  Ch.   D. 
355,  369  et  seq.;  38  Ch.  D.  520,  530 
et  seq.',  In  re  St.  Stephen,  39  Ch.  D. 
492,  500,  501;  In  re  Norwich  Town 
Close  Estate  Charity,  40  Ch.  D. 
298,  301,  306. 

2  Wright  v.  Linn,  9  Pa.  433. 

1  If  an  immediate  distribution 
is  directed,  a  gift  to  poor  relations 
is  not  a  charity,  and  the  distribu- 
tion is  confined  to  the  testator's 
next  of  kin.  Carr  v.  Bedford,  2  Ch. 
Rep.  146.  Griffith  v.  Jones,  Id. 
394.  Edge  v.  Salisbury,  Amb.  70. 
Brunsden  v.  Woolredge,  Id.  507. 
Widmore  v.  Woodroffe,  Id.  636. 
Goodinge  v.  Goodinge,  1  Ves.  Sr. 
231.  Green  v.  Howard,  1  Bro.  C.  C. 
31.  Mahon  v.  Savage,  1  Sch.  & 
L.  111.  Bronson  v.  Strouse,  57 
Conn.  147.  M'Neilledge  v.  Gal- 
braith,  8  S.  &  R.  43.  Same  v.  Bar- 
clay, 11  S.  &  R.  103.  See  Liley  v. 
Hey,  1  Hare,  580;  Thomas  v. 
Howell,  L.  R.  18  Eq.  198;  Smith 
v.  Harrington,  4  Allen,  566;  Ingra- 
ham  v.  Ingraham,  169  111.  432; 
Sugd.  Pow.  (8th  ed.)  652  et  seq. 
It  has  sometimes  been  held  that  in 
Buch  a  gift  the  word  "poor"  is  to 
be  rejected.  A.  G.  v.  Buckland, 
cited  Amb.  71  (but  see  note  ad 
loc.}.  Widmore  v.  Woodroffe,  ubi 


sup.  (but  here  there  was  only  one 
next  of  kin).  M'Neilledge  v.  Gal- 
braith  and  Same  v.  Barclay,  ubi 
sup.  Fontaine  v.  Thompson,  80 
Va.  229.  But  the  better  opinion 
is  that  the  next  of  kin  must  also  be 
poor,  to  entitle  them  to  take.  Carr 
v.  Bedford;  Brunsden  v.  Woolredge; 
Green  v.  Howard;  Mahon  v.  Savage; 
Bronson  v.  Strouse,  ubi  sup.  Lewin, 
Trusts  (10th  ed.)  1021,  note.  2 
Jarm.  Wills  (6th  ed.)  1634.  See 
A.  G.  v.  Northumberland,  7  Ch.  D. 
745;  Bull  v.  Bull,  8  Conn.  47. 

4  Where  the  gift  to  poor  rela- 
tions is  charitable,  the  choice  is  not 
confined  to  the  next  of  kin.  Isaac 
v.  Defriez,  Amb.  595  (2d  ed.), 
semble  (see  17  Ves.  373).  A.  G.  v. 
Bucknall,  2  Atk.  328.  White  v. 
White,  7  Ves.  423,  semble.  A.  G. 
v.  Price,  17  Ves.  371.  Gillam  ». 
Taylor,  L.  R.  16  Eq.  581.  (Cf. 
A.  G.  v.  Northumberland,  7  Ch.  D. 
745.)  Gafney  v.  Kenison,  64  N.  H. 
354.  Webster  v.  Morris,  66  Wis. 
366,  392,  393.  See  Bernal  v.  Bernal, 
3  Myl.  &  Cr.  559;  Waldo  v.  Caley, 
16  Ves.  206;  Swasey  v.  Am.  Bible 
Soc.,  57  Me.  523.  But  the  benefi- 
ciaries must  be  absolutely,  not  rela- 
tively, poor.  A.  G.  v.  Northum- 
berland, L.  R.  7  Ch.  D.  745.  It  is 
doubtful  whether  in  Massachusetts 
a  devise  to  poor  relations  is  a  good 
charitable  gift. 


APPENDIX. 


533 


preferred  are  very  frequent  in  charities  and  have  been  held  to  be 
good.1 

§  685.  Certainly  where  the  class  intended  to  be  benefited  is  so 
limited  that  one  can  say,  "A.  must  take  under  this  gift  if  any  one 
does;"  as  in  a  gift  for  the  minister  of  a  church  or  for  a  schoolmaster,2 
it  can  hardly  be  said  that  A.  has  no  rights.3  So  when  a  charity  is 
for  all  the  inhabitants,4  one  becoming  an  inhabitant  has  a  right  to 
enjoy  the  charity,  which  right  accrues  when  he  becomes  an  inhabit- 
ant; and  so,  again,  a  sole  poor  relation  has  a  right  in  the  income  of  a 
charitable  trust  for  poor  relations.5  There  are  therefore  some  trusts 
which  are  charitable,  and  yet  have  definite  cestuis  que  trust.6 


1  Perin  v.  Carey,  24  How.  465, 
507.  Franklin  v.  Armfield,  2  Sneed, 
305,  351.  Dexter  v.  Harvard  Col- 
lege, 176  Mass.  192.  See  Flood's 
Case,  Hob.  136;  Spencer  v.  All 
Souls  College,  Wilmot,  163;  A.  G. 
v.  Sidney  Sussex  College,  34  Beav. 
654;  L.  R.  4  Ch.  722;  Darcy  v. 
Kelley,  153  Mass.  433;  Laverty  v. 
Laverty,  [1907]  1  I.  R.  9. 

*  §  681,  ante. 

1  See  A.  G.  v.  Smart,  1  Ves.  Sr. 
72. 

4  §  682,  ante. 
6  §  683,  ante. 

•  The  Attorney  General  is  a  nec- 
essary party  to  a  suit  to  carry  out 
a  charitable  trust.     Although,  as  is 
shown   in   the   text,    a   charitable 
trust  has  sometimes  definite  cestuis 
que  trust,  yet  the  Attorney  General 
is  always  a  necessary  party  to  a 
suit  in  equity  to  enforce  a  chari- 
table trust.  Cf .  In  re  Faraker,  [1912] 
2  Ch.  (C.  A.)  488,  492. 

In  the  sixteenth  century  the 
intervention  of  the  Attorney  Gen- 
eral seems  to  have  been  considered 
unnecessary.  See  cases  collected 
in  Dwight's  Charity  Cases,  4,  14, 
26,  65,  77,  181-203,  225-229;  El- 
mer v.  Scot,  Choice  Cas.  in  Ch.  155 
(1582). 


In  proceedings  before  Commis- 
sioners under  the  Statute  of  Chari- 
table Uses  (43  Eliz.  c.  4),  the  At- 
torney General  did  not  appear, 
Wright  v.  Hobert,  9  Mod.  64;  and 
indeed  there  seem  to  have  been  no 
parties  properly  so  called.  See 
Duke,  Charitable  Uses,  passim. 
But  proceedings  under  this  statute 
have  become  obsolete  in  England 
(see  Tud.  Char.  (3d  ed.)  446); 
and  were  never  taken  in  the 
United  States. 

When  there  is  a  suit  between  a 
trustee  for  charitable  trusts  and  a 
person  claiming  adversely  to  the 
trusts,  in  which  there  is  no  ques- 
tion how  the  funds  shall  be  applied 
in  charity,  the  Attorney  General 
need  not  be  a  party.  See  Monill  t>. 
Lawson,  4  Vin.  Ab.  500;  A.  G.  v. 
Whorwood,  1  Ves.  Sr.  534;  Chitty 
v.  Parker,  4  Bro.  C.  C.  38;  A.  G.  v. 
Warren,  2  Swanst.  291;  Ware  v. 
Cumberlege,  20  Beav.  503,  510  et 
seq.;  A.  G.  v.  Clark,  167  Mass.  201; 
Wilberforce  Educational  Institute 
v.  Holden,  17  Ont.  439. 

But  to  all  suits  in  equity  brought 
to  carry  out  the  provisions  of  a 
charitable  trust  in  behalf  of  the 
class  or  persons  intended  to  be 
benefited  the  Attorney  General 


THE   RULE  AGAINST  PERPETUITIES. 


B. 


THE  THELLUSSON  ACT.1 

§  686.  Peter  Thellusson,  who  died  in  1797,  devised  his  property 
to  trustees  to  accumulate  the  income  during  the  lives  of  all  his  sons, 


must  be  a  party.  See  Wellbeloved 
v.  Jones,  1  S.  &  St.  40;  Sons  of  the 
Clergy  v.  Mose,  9  Sim.  610;  A.  G. 
v.  Magdalen  College,  18  Beav.  223, 
241  et  seq.\  A.  G.  v.  Mayor  of  Gal- 
way,  1  Molloy,  95,  97,  note;  Strick- 
land v.  Weldon,  28  Ch.  D.  426. 

When  there  are  definite  trustees 
of  a  charitable  trust,  they  may  bring 
a  bill  to  administer  a  charity,  but 
the  Attorney  General  must  be 
joined  as  a  defendant.  Mayor  v. 
Nixon,  2  Y.  &  J.  60.  Christ's  Hos- 
pital v.  A.  G.,  5  Hare,  257.  Har- 
vard College  v.  Soc.  for  Promoting 
Theological  Education,  3  Gray, 
280.  The  case  of  Davis  v.  Jenkins, 
3  V.  &  B.  151,  was,  semble,  not  that 
of  a  charity. 

And  the  Attorney  General  is  no 
less  a  necessary  party  to  a  suit  to 
enforce  a  charitable  trust  because 
there  may  be  definite  cestuis  que 
trust,  e.  g.,  a  charitable  trust  for 
poor  relations.  Isaac  v.  Defriez, 
Amb.  595.  A.  G.  v.  Bucknall,  2 
Atk.  328.  A.  G.  v.  Price,  17  Ves. 
371.  Gillam  v.  Taylor,  L.  R.  16 
Eq.  581.  A.  G.  v.  Northumber- 
land, 7  Ch.  D.  745.  But  cf.  A.  G. 
v.  Clark,  167  Mass.  201,  204. 


The  Attorney  General  has  the 
control  of  an  information  brought 
by  him.  The  relator  is  joined  only 
that  there  may  be  some  one  respon- 
sible for  costs,  and  he  need  have  no 
interest  in  the  suit.  See  Waller  v* 
Hanger,  2  Bulst.  134;  Anon.,  Sel. 
Cas.  in  Ch.  69;  A.  G.  v.  Bucknall, 
2  Atk.  328;  Ludlow  v.  Greenhouse, 
1  Bligh,  N.  s.  17,  43-52;  A.  G.  v. 
Mayor  of  Dublin,  Id.  312,  351;  Re 
Bedford  Charity,  2  Swanst.  470, 
520;  A.  G.  v.  Green,  1  J.  &  W.  303, 
305;  A.  G.  v.  Fellows,  Id.  254; 
A.  G.  v.  Dove,  T.  &  R.  328;  A.  G.  v. 
Vivian,  1  Russ.  226,  235-237; 
A.  G.  v.  Carlisle,  4  Sim.  275;  A.  G.  v. 
Plumptree,  5  Mad.  452;  A.  G.  v. 
Ironmongers'  Co.,  2  Beav.  313, 
328-332;  2  Myl.  &  K.  576,  578; 
A.  G.  v.  Barker,  4  Myl.  &  Cr.  262; 
Shore  v.  Wilson,  9  Cl.  &  F.  355,  475; 
A.  G.  v.  Newark,  1  Hare,  395,  399; 
A.  G.  v.  Clapham,  10  Hare,  App. 
Ixviii.;  A.  G.  v.  Brettingham,  3 
Beav.  91,  95;  A.  G.  v.  Wright,  Id. 
447;  A.  G.  v.  Haberdashers'  Co.,  15 
Beav.  397;  A.  G.  v.  Wyggeston's 
Hospital,  16  Beav.  313,  314,  note; 
A.  G.  t;.  Magdalen  College,  18  Beav. 
223;  A.  G.  v.  Sherborne  Grammar 


1  The  provisions  of  the  Thel- 
lusson Act  have  been  partially 
adopted  hi  Pennsylvania  and  in 
Alabama.  The  law  in  those  States 
on  the  subject  of  accumulation  is 
considered  at  the  end  of  this  Ap- 


pendix B,  §§  715-726,  post.  The 
provisions  on  accumulation  in  the 
New  York  statutory  system,  and  in 
those  States  which  have  copied  the 
New  York  system,  are  given  in  Ap- 
pendix C. 


APPENDIX. 


535 


grandsons,  and  grandsons'  children  who  were  living  at  his  death, 
and  then,  at  the  death  of  the  survivor,  to  transfer  the  property  in 


School,  Id.  256,  264;  A.  G.  v.  St. 
Cross  Hospital,  Id.  475;  A.  G.  v. 
Boucherett,25  Beav.  116, 121;  A.  G. 
v.  Butler,  123  Mass.  304,  309;  1 
Swanst.  305,  note.  Cf.  A.  G.  v. 
Heath,  Free.  Ch.  13. 

Since  the  death  of  Queen  Eliza- 
beth (1603)  there  seem  to  have 
been  but  two  cases  in  which  a  suit 
has  been  brought  involving  a  chari- 
table trust  without  the  intervention 
of  the  Attorney  General.  They 
are:  — 

(1)  West  v.  Knight,  1  Ch.  Gas. 
134  (1669).     In  this  case  P.  had 
given  by  will  £50  to  the  Parish  of 
C.     The  minister,  churchwardens, 
and  overseers  for  the  poor  brought 
a  bill  against  P.'s  executrix,  sug- 
gesting that  he  intended  it  for  the 
benefit  of  the  poor.     It  was  con- 
tended by  the  executrix  that  any 
relief  must  be  by  Commission  of 
Charitable  Uses,  and  not  by  bill; 
but  the  Court  sustained  the  bill. 
See  Sir  John  Romilly's  remarks  on 
this  case  in  A.  G.  v.  Magdalen  Col- 
lege, 18  Beav.  223,  249,  253. 

(2)  Bernal  v.  Bernal,  3  Myl.  & 
Cr.  559.     A  fund  was  established 
by  a  testator  for  poor  relations.    In 
a  suit  to  determine  who  were  enti- 
tled, the  Attorney  General  was  not 
a  party.    No  question  was  made  as 
to  his  absence,  and  no  dispute  as  to 
the  validity  of  the  legacy.    It  would 
seem  clear,  either  that  the  legacy 
was  a  charity,  and  the  Attorney 
General  should  have  been  made  a 
party,  or,  if  not  a  charity,  it  could 
be  sustained  only  on  the  ground 
that  it  was  valid  by  the  law  of  Hol- 
land, where  the  testator  was  domi- 


ciled. Considered  as  a  legacy  not 
charitable,  and  to  be  governed  by 
English  law,  it  was  certainly  too 
remote. 

The  case  of  Saltash  v.  Goodman, 
5  C.  P.  D.  431;  7  Q.  B.  D.  106;  sub 
nom.  Goodman  v.  Saltash,  7  Ap. 
Cas.  633,.  has  been  stated,  §§582, 
583,  ante.  The  ground  on  which 
it  was  put  by  the  House  of  Lorda 
was  that  the  plaintiffs  held  a  fishery, 
subject  to  the  charitable  trust  of 
allowing  the  class  to  which  the 
defendants  belonged  to  take  fish 
at  certain  tunes  of  the  year.  If  the 
defendants  had  wished  to  enforce 
their  claim,  it  would  seem  as  if  the 
suit  must  have  been  brought  as  an 
information  by  the  Attorney  Gen- 
eral. (See  A.  G.  v.  Heelis,  2  S.  & 
St.  67,  76  et  seq.;  A.  G.  v.  Carlisle, 
2  Sun.  437.  The  case  of  Wright 
v.  Hobert,  9  Mod.  64,  was  before 
Commissioners.)  But  the  suit  was 
an  action  of  trespass  against  the 
defendants,  and  to  such  a  suit  the 
Attorney  General  would  not  seem 
to  be  a  necessary  party. 

Kurtz  t>.  Beatty,  2  Cr.  C.  C.  699, 
sub  nom.  Beatty  v.  Kurtz,  2  Pet. 
566,  was  mentioned  in  the  first  edi- 
tion as  a  suit  to  enforce  a  charitable 
trust  brought  without  joining  the 
Attorney  General.  But,  in  truth, 
it  was  not  a  suit  to  enforce  a  char- 
itable trust.  The  requirements  of 
the  Statute  of  Frauds  preventing 
the  transaction  from  creating  a 
trust,  it  was  considered  to  have 
amounted  to  the  dedication  of  a 
burying-ground.  See  Hopkins  v. 
Grimshaw,  165  U.  S.  342,  352.  In 
England  only  highways  can  be 


536 


THE   RULE  AGAINST  PERPETUITIES. 


three  lots  to  the  then  living  eldest  male  descendants  of  his  three 
sons.  The  validity  of  this  will  was  sustained  by  the  courts,1  but  it 
led  to  the  passing,  in  1800,  of  the  Statute  39  &  40  Geo.  III.,  c.  98, 
commonly  known  as  the  Thellusson  Act.2  This  act  is  given  in  full 
in  a  note.3  The  history  of  the  Thellusson  litigation  is  told  in  the  first 


dedicated,  but  in  several  of  the 
United  States  the  courts,  following 
the  lead  of  Beatty  v.  Kurtz,  have 
allowed  dedication  for  other  pur- 
poses; e.  g.  public  squares,  as  in 
Cincinnati  v.  White,  6  Pet.  431; 
wharves,  as  in  Godfrey  v.  Alton,  12 
111.  29;  schools,  as  in  Klinkener 
0.  M'Keesport,  11  Pa.  444;  bury- 
ing-grounds,  as  in  Hunter  v.  Trustees 
of  Sandy  Hill,  6  Hill,  470;  Pierce  v. 
Spafford,  53  Vt.  394. 

1  Thellusson  v.  Woodford,  4  Ves. 
227;  11  Ves.  112,  §§  216,  217,  ante. 

1  The  Statute  is  sometimes 
called  Lord  Loughborough's  Act. 
See  Edwards  v.  Tuck,  3  De  G.  M. 
&  G.  40,  55. 

J  "An  Act  to  restrain  all  Trusts 
and  Directions  in  Deeds  or  Wills, 
whereby  the  Profits  or  Produce  of 
Real  or  Personal  Estate  shall  be  ac- 
cumulated, and  the  beneficial  En- 
joyment thereof  postponed  beyond 
the  Time  therein  limited. 

"I.  Whereas  it  is  expedient  that 
all  dispositions  of  real  or  personal 
estates  whereby  the  profits  and 
produce  thereof  are  directed  to  be 
accumulated,  and  the  beneficial 
enjoyment  thereof  is  postponed, 
should  be  made  subject  to  the  re- 
strictions hereinafter  contained; 
may  it  therefore  please  your  Maj- 
esty that  it  may  be  enacted;  and 
be  it  enacted  by  the  King's  most 
excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  lords 
spiritual  and  temporal,  and  com- 
mons, in  Parliament  assembled, 


and  by  the  authority  of  the  same, 
That  no  person  or  persons  shall, 
after  the  passing  of  this  Act,  by 
any  deed  or  deeds,  surrender  or 
surrenders,  will,  codicil  or  other- 
wise howsoever,  settle  or  dispose 
of  any  real  or  personal  property, 
so  and  in  such  manner  that  the 
rents,  issues,  profits  or  produce 
thereof  shall  be  wholly  or  partially 
accumulated;  for  any  longer  term, 
than  the  life  or  lives  of  any  such 
grantor  or  grantors,  settler  or  set- 
tlers; or  the  term  of  twenty-one 
years  from  the  death  of  any  such 
grantor,  settler,  devisor  or  testator; 
or  during  the  minority  or  respective 
minorities  of  any  person  or  persons 
who  shall  be  living,  or  in  venire  sa 
mere  at  the  time  of  the  death  of 
such  grantor,  devisor  or  testator;  or 
during  the  minority  or  respective 
minorities  only  of  any  person  or 
persons  who,  under  the  uses  or 
trusts  of  the  deed,  surrender,  will 
or  other  assurances  directing  such 
accumulations,  would,  for  the  time 
being,  if  of  full  age,  be  entitled 
unto  the  rents,  issues  and  profits,  or 
the  interest,  dividends  or  annual 
produce  so  directed  to  be  accumu- 
lated; and  in  every  case  where  any 
accumulation  shall  be  directed 
otherwise  than  as  aforesaid,  such 
direction  shall  be  null  and  void, 
and  the  rents,  issues,  profits  and 
produce  of  such  property  so  directed 
to  be  accumulated,  shall,  so  long 
as  the  same  shall  be  directed  to  be 
accumulated  contrary  to  the  pro- 


APPENDIX. 


537 


chapter  of  Hargrave's  Treatise  on  the  Thellusson  Act.1    The  clumsy 
drafting  of  the  Act  has  been  often  remarked  on.2 

§  687.  A  provision  for  accumulation  which  violates  the  Rule 
against  Perpetuities  is  wholly  void; 3  but  a  provision  which  is  good 
so  far  as  the  Rule  against  Perpetuities  is  concerned,  but  violates 
the  Thellusson  Act,  is  void  only  for  the  excess.  Thus,  if  there  be  a 


visions  of  this  Act,  go  to  and  be 
received  by  such  person  or  persons 
as  would  have  been  entitled  thereto 
if  such  accumulation  had  not  been 
directed. 

"II.  Provided  always,  and  be  it 
enacted,  That  nothing  in  this  Act 
contained  shall  extend  to  any  pro- 
vision for  payment  of  debts  of  any 
grantor,  settler  or  devisor,  or  other 
person  or  persons,  or  to  any  provi- 
sion for  raising  portions  for  any 
child  or  children  of  any  grantor, 
settler  or  devisor,  or  any  child  or 
children  of  any  person  taking  any 
interest  under  any  such  convey- 
ance, settlement  or  devise,  or  to  any 
direction  touching  the  produce  of 
timber  or  wood  upon  any  lands  or 
tenements;  but  that  all  such  pro- 
visions and  directions  shall  and 
may  be  made  and  given  as  if  this 
Act  had  not  passed. 

"III.  Provided  also,  and  be  it 
enacted,  That  nothing  in  this  Act 
contained  shall  extend  to  any  dis- 
position respecting  heritable  prop- 
erty within  that  part  of  Great 
Britain  called  Scotland. 

"IV.  Provided  also,  and  be  it 
enacted,  That  the  restrictions  in 
this  Act  contained  shall  take  effect 
and  be  in  force  with  respect  to  wills 
and  testaments  made  and  executed 
before  the  passing  of  this  Act,  in 
such  cases  only  where  the  devisor 
or  testator  shall  be  living,  and  of 
sound  and  disposing  mind,  after 
the  expiration  of  twelve  calendar 


months  from  the  passing  of  this 
Act." 

The  St.  55  &  56  Viet.  c.  58,  cited 
as  the  Accumulations  Act,  1892, 
added  the  following  provision  to 
the  Thellusson  Act:  "No  person 
shall,  after  the  passing  of  this  act, 
settle  or  dispose  of  any  property 
in  such  manner  that  the  rents, 
issues,  profits,  or  income  thereof 
shall  be  wholly  or  partially  accumu- 
lated for  the  purchase  of  land  only, 
for  any  longer  period  than  during 
the  minority  or  respective  minori- 
ties of  any  person  or  persons  who 
under  the  uses  and  trusts  of  the  in- 
strument directing  such  accumula- 
tion would,  for  the  time  being,  if 
of  full  age,  be  entitled  to  receive 
the  rents,  issues,  profits,  or  income 
so  directed  to  be  accumulated." 
See  In  re  Clutterbuck,  [1901]  2  Ch. 
285;  In  re  Llano ver,  [1903]  2  Ch. 
330. 

1  See  also  4  Ves.  (Sumner's  Ed.) 
227,  note. 

2  Thellusson    t>.    Woodford,    11 
Ves.  112,  148.    Bridgnorth  v.  Col- 
lins,  15  Sim.   538,   541.     Shaw  v. 
Rhodes,   1   Myl.  &  Cr.   135,   141. 
Ellis  v.  Maxwell,  3  Beav.  587,  596. 
Barrington  v.  Liddell,  2  De  G.  M. 
&  G.  480,  497.    Edwards  v.  Tuck,  3 
De  G.  M.  &  G.  40,  55.    Tench  v. 
Cheese,  6  De  G.  M.  &  G.  453,  460 
(see,  however,  s.  c.  19  Beav.  3,  26). 
Harg.  Thel.  Act,  §  19. 

»  §  674,  ante. 


538  THE   RULE   AGAINST   PERPETUITIES. 

direction  in  a  will  to  accumulate  income  during  the  life  of  A.,  it  can 
be  accumulated  for  twenty-one  years  from  the  testator's  death.1 

§  688.  But  the  Thellusson  Act  does  not  render  valid,  pro  tanto,  a 
provision  for  accumulation  which  violates  the  Rule  against  Perpetu- 
ities; such  provision  is  bad  altogether.2 

§  689.  Sometimes  a  direction  to  accumulate  is  made  by  implica- 
tion, although  not  directly.  Thus  while  upon  an  executory  devise 
of  realty  the  intermediate  income  belongs  to  the  heir,  upon  many 
executory  bequests  of  personalty,  for  instance,  executory  bequests 
of  residue,  the  intermediate  income  is  accumulated  and  goes  with 
the  principal.  Suppose,  then,  the  event  upon  which  such  an  ex- 
ecutory bequest  of  personalty  is  to  take  effect  is  within  the  limits 
prescribed  by  the  Rule  against  Perpetuities,  but  beyond  those  fixed 
by  the  Thellusson  Act,  what  is  to  be  done  with  the  income  beyond 
the  time  fixed  by  the  Thellusson  Act?  Does  the  Act  apply  to  it,  or 
can  it  be  accumulated  for  the  benefit  of  the  person  to  whom  the 
executory  bequest  is  made? 

§  690.  Sir  Lancelot  Shadwell,  V.  C.,  ruled  that  the  Act  did  not  apply 
unless  the  direction  to  accumulate  was  express; 3  and  his  decision  was 
approved  by  Stuart,  V.  C.,4  and  Romilly,  M.  R.5  But  the  great  weight 
of  authority,  as  of  reason,  is  the  other  way.9 

»  Griffiths  P.  Vere,  9  Ves.  127.  324.     See   Leake   v.   Robinson,  2 

Longdon  ».  Simson,   12  Ves.  295.  Mer.  363,  389,  390. 
Crawley  v.  Crawley,  7  Sim.   427.  *  Marshall      v.      Holloway,     2 

O'Neill    t>.    Lucas,    2    Keen,    313.  Swanst.  432,  450.    Curtis  v.  Lukin, 

M'Donald  v.  Bryce,  Id.  276.    Eyre  5  Beav.  147.    Browne  v.  Stoughton, 

v.  Marsden,  Id.  564,  572;  4  Myl.  &  14  Sim.  369.     Boughton  v.  Jamea, 

Cr.  231.    Shaw  t>.  Rhodes,  1  Myl.  1  Coll.  26,  45;  sub  nom.  Boughton 

&  Cr.  135;  sw6  nom.  Evans  v.  Hel-  v.  Boughton,  1  H.  L.  C.  406.    Scar- 

lier,  5  Cl.  &  F.  114.    Ellis  v.  Max-  isbrick   v.    Skelmeredale,    17   Sim. 

well,  3  Beav.  587;  12  Beav.  104.  187.    Turvin  v.  Newcome,  3  K.  & 

Elborne  v.   Goode,    14   Sim.    165.  J.  16.     Baker  v.  Stuart,  28  Ont. 

Rosslyn's    Trust,     16    Sim.     391.  439.     Harg.   Thel.    Act,    §§  74  et 

Oddie  v.  Brown,  4  De  G.  &  J.  179.  seq. 

Bective  v.  Hodgson,  10  H.  L.  C.  *  Elborne    v.  Goode,    14   Sim. 

656,     664,     671.      Weatherall    v.  165.    Bridgnorth  v.  Collins,  15  Sim. 

Thornburgh,  6  Ch.  D.  261.     Fon-  538. 

seca  v.  Jones,  21   Manitoba,   168,  *  Matthews  v.  Keble,  L.   R.  4 

184.     Harrison  v.  Harrison,  7  Ont.  Eq.  467. 

L.    R.    297.     Harg.    Thel.    Act,          •  Tench  v.  Cheese,  19  Beav.  3. 
§§  111  etseg.    Marsden,  Perp.  323,          •  M'Donald   v.   Bryce,  2  Keen, 


APPENDIX.  539 

§  691.  The  decisions  of  Sir  Lancelot  Shadwell  seem  to  have  been 
based  on  the  mistaken  analogy  of  infancy.  The  fact  that  at  the 
end  of  a  period  of  accumulation  the  person  entitled  to  the  prop- 
erty may  be  an  infant,  and  that,  therefore,  the  income  may  have 
to  be  accumulated  longer,  is  no  objection  to  the  prior  accumulation. 
This  further  accumulation  is  not  a  consequence  of  any  act  of  the 
settlor  or  testator;  he  could  not  give  authority  to  the  infant  to  deal 
with  the  property,  if  he  would.1  But  this  furnishes  no  justification 
for  Shadwell,  V.  C.'s,  decisions.  In  cases  like  those  before  him,  the 
provisions  for  accumulation  are  entirely  in  the  control  of  the  testa- 
tor; the  testator  could  prevent  the  income  going  with  the  principal 
if  he  saw  fit,  and  the  implied  direction  is  as  much  his  act  as  an  express 
direction  would  be.s 

§  692.  If  the  person  to  whom  the  accumulations  are  to  be  paid 
has  a  vested  indefeasible  right  to  the  possession  of  the  principal, 
then  the  direction  to  accumulate  is  an  illegal  restraint  on  alienation, 
and  such  person  can  put  an  end  to  the  accumulation  at  any  time.8 
Consequently  such  accumulation,  as  it  can  be  stopped  at  any  tune, 
is  not  obnoxious  to  the  Thellusson  Act,  any  more  than  it  is  to  the 
Rule  against  Perpetuities.4 

276.    Bective  v.  Hodgson,  10  H.  L.          »  See  Griffiths  v.   Vere,  9  Ves. 

C.  656,  664,  671  (see  Matthews  v.  127,  136;  and  cf.  Lombe  v.  Stough- 

Keble,  L.  R.  4  Eq.  467,  472).    Pur-  ton,  12  Sim.  304. 

sell  v.  Elder,  4  Macq.  992.    Wade-          *  See  Tench  v.  Cheese,  6  De  G. 

Gery  v.  Handley,   1  Ch.   D.  653,  M.  &  G.  453,  462,  463;  Matthews  v. 

664;  3  Ch.  D.  374.    Ralph  v.  Car-  Keble,  L.  R.  3  Ch.  691,  696;  Bryan 

rick,  5  Ch.  D.  984,  997,  998;  11  v.  Collins,   16  Beav.   14;  1  Jarm. 

Ch.   D.  873.     Lord  v.  Colvin,  23  Wills  (6th  ed.)  380;  Marsden,  Perp. 

Dunlop,  C.  of  Sess.  111.    See  Tench  330;  and  cf.  Wilson  v.  Wilson,  1 

v.  Cheese,  6  De  G.  M.  &  G.  453,  Sim.  N.  s.  288. 

462,  463;  Macpherson  v.  Stewart,          *  See    Josselyn    v.   Josselyn,   9 

28  L.  J.  Ch.   177;  32  L.  T.  143;  Sim.   63;  Saundere  v.   Vautier,   4 

Mathews  v.  Keble,  L.  R.  3  Ch.  691;  Beav.  115;  Cr.  &  Ph.  240;  Gosling 

Mackenzie  v.  Mackenzie,  4  Rettie,  v.  Gosling,  Johns.  265;  Hilton  v. 

C.  of  Sess.  962;  Smyth  v.  Kinloch,  Hilton,  L.  R.  14  Eq.  468. 

7  Rettie,  C.  of  Sess.  1176;  Elder's          «  MacVeanw.  MacVean,  24  Viet. 

Trustees  v.  Treasurer  of  Free  Church,  L.  R.  835.    §  672,  ante.    Marsden, 

20  Rettie  C.  of  Sess.  2;  Harg.  Thel.  Perp.   333.     As   to   charities,    see 

Act,  §§  67  et  seq.;  Uarm.  Wills  (6th  $§  679,  679  a,  ant*. 

ed.)  379,  380;  Marsden,  Perp.  325- 

330. 


540  THE  RULE  AGAINST  PERPETUITIES. 

§  693.  In  Bassil  v.  Lister  l  a  testator  directed  his  trustees  to  pay, 
out  of  the  income  of  his  property,  the  premiums  upon  policies  of 
insurance  which  had  been  effected  by  him  upon  the  lives  of  his  sons; 
on  the  marriages  of  the  sons  the  policies  to  be  settled  for  the  benefit 
of  their  widows  and  children.  Turner,  V.  C.,  held  that  this  direction 
was  valid  for  the  whole  of  the  lives  insured  and  not  merely  for  twenty- 
one  years  after  the  testator's  death.  This  decision  is  criticised  by 
the  editors  of  Jarman  on  Wills.2 

§  694.  Like  the  Rule  against  Perpetuities,  the  Thellusson  Act  is 
not  a  rule  of  construction,  but  a  positive  command  of  law  given  for 
the  purpose  of  defeating  intention.  A  settlement  or  will  is  there- 
fore to  be  construed  as  if  the  Thellusson  Act  did  not  exist,  and  then 
the  Act  applied.  The  Act  does  not  have  the  effect  of  accelerating 
the  enjoyment  of  the  property.3 

§  695.  Four  periods  during  which  accumulation  is  allowed  are 
mentioned  in  the  Act.  One  only  of  the  periods  can  be  taken.4 

§  696.  (I.)  The  first  period  is  "the  life  or  lives  of  any  such  grantor 
or  grantors,  settler  or  settlers."  6  Of  course  there  cannot  be  any 
such  provision  in  a  will.6 

§  697.  (II.)  The  second  period  is  "the  term  of  twenty-one  years, 
from  the  death  of  any  such  grantor,  settler,  devisor,  or  testator."  7 
This  period  begins  to  run  from  the  testator's  death  or  the  date  of 
the  settlement,  although  the  accumulation  does  not  begin  then,  but 
later.  Therefore  accumulation  beginning  twelve  years  after  the 

1  9  Hare,  177.  position  of  the  income  during  the 

8  1  Jarm.  Wills  (6th  ed.)  391  interim,  see  §§  700-708,  post. 

et  seq.    See  Re  Errington,  76  L.  T.  4  Rosslyn's  Trust,  16  Sim.  391. 

R.  616;  45  W.  R.  573;   1  Perry,  Wilson  v.  Wilson,  1  Sim.  N.  s.  288. 

Trusts  (6th  ed.)  §  400;  cf.  §  699  b,  Jagger  v.  Jagger,  25  Ch.  D.  729. 

post.  Re  Errington,  76  L.  T.  R.  616;  45 

»  Eyre  v.  Marsden,  2  Keen,  564,  W.  R.  573.  But  see  2  Prest.  Abs. 

574.     Nettleton  v,   Stephenson,   3  180;  Harg.  Thel.  Act,  §§  109,  110. 

De  G.  &  Sm.  366.    Green  v.  Gas-          6  Fonseca   v.  Jones,  21    Mani- 

coyne,  4  De  G.  J.  &  S.  565.   Weath-  toba,  168,  184. 

erall  v.  Thornburgh,  8  Ch.  D.  261.  •  See  Heywood  v.  Heywood,  29 

Harrison  v.  Harrison,  7  Ont.  L.  R.  Beav.   9;   Harg.   Thel.   Act,  §  89; 

297.     Colquhoun    v.    Colquhoun's  and  see  Re  Errington,  76  L.  T.  R. 

Trustees,  19  Rettie,  C.  of  Sess.  946.  616;  45  W.   R.   573;     Fonseca  P. 

Smith  v.  Glasgow  Infirmary,  [1909]  Jones,  21  Manitoba,  168,  184. 

Sessions  Cases,  1231.    On  the  dis-          7  Harg.  Thel.  Act,  §  90  et  seq. 


APPENDIX.  541 

testator's  death  can  last  only  nine  years.1  The  day  of  the  testa- 
tor's death  is  excluded  from  the  twenty-one  years.  Thus  when  a 
testator  died  Jan.  5,  1820,  dividends  due  Jan.  5,  1841,  were  held 
within  a  trust  for  accumulation.2 

§  698.  (III.)  The  third  period  is  "during  the  minority  or  re- 
spective minorities  of  any  person  or  persons  who  shall  be  living  or 
in  ventre  sa  mere  at  the  time  of  the  death  of  such  grantor,  devisor 
or  testator."  3 

§  699.  (IV.)  The  fourth  period  is  "during  the  minority  or  re- 
spective minorities  only  of  any  person  or  persons  who,  under  the 
uses  or  trusts  of  the  deed,  surrender,  will  or  other  assurances,  direct- 
ing such  accumulations,  would,  for  the  time  being,  if  of  full  age, 
be  entitled  unto  the  rents,  issues  and  profits,  or  the  interest,  dividends 
or  annual  produce  so  directed  to  be  accumulated."  Under  this 
clause  it  has  been  held  that  an  accumulation  beginning  at  the  tes- 
tator's death  cannot  continue  till  the  coming  of  age  of  a  person  unborn 
at  the  testator's  death,  but  lasts  only,  under  (II),  for  twenty-one 
years  from  the  testator's  death.4  It  was  said  in  Haley  v.  Bannister 5 
and  Bryan  v.  Collins 6  that  accumulations  could  not  be  made  during 
the  minorities  of  persons  unborn  at  the  death  of  the  testator; 7  but  it 
has  never  been  decided  that  accumulations  beginning  at  the  birth  of 
such  a  person  cannot  continue  till  he  is  twenty-one.  If  a  provision  for 
such  accumulation  is  bad,  then  this  fourth  clause  adds  nothing  to  the 
third,  and  might  have  been  omitted  from  the  Statute;  and  the  pro- 
visions for  accumulation  of  income  during  minorities,  common  in 
English  wills  and  settlements,  are  invalid.  The  text-writers  generally 

1  Webb  v.  Webb,  2  Beav.  493.  one  years  should   be   apportioned 

A.   G.   v.   Poulden,    3   Hare,   555.  under  the  St.  4  &  5  Wm.  IV.  c.  22. 

Shaw  v.  Rhodes,  1  Myl.  &  Cr.  135.  It  was  objected  that  this  would 

Nettleton  v.  Stephenson,  3  De  G.  violate    the    Thellusson    Act,    but 

&  Sm.  366.     Campbell's  Trustees  the  Court,  overruled  the  objection. 
v.  Campbell,  18  Rettie,  C.  of  Sess.  *  Harg.  Thel.  Act,  §§  93  et  seq. 

992.  «  Longdon  v.  Simson,    12   Ves. 

J  Gorst   v.    Lowndes,    11    Sim.  295.     Haley  v.  Bannister,  4  Mad. 

434.    In  St.  Aubyn  v.  St.  Aubyn,  1  275.     Ellis   v.   Maxwell,    3   Beav. 

Dr.  &  Sm.  611,  land  was  devised  to  587. 
A.  for  twenty-one  years,  on  an  ac-  '  4  Mad.  275. 

cumulating  trust,  and  then  to  B.  •  16  Beav.  14,  17. 

A.  contended  that  rent  falling  due  7  See  Ellis  v.  Maxwell,  3  Beav. 

next  after  the  end  of  the  twenty-  587,  596,  597. 


542  THE  RULE  AGAINST  PERPETUITIES. 

inclined  to  the  opinion  that  provisions  for  accumulation  which  do  not 
violate  the  Rule  against  Perpetuities  are  good  if  they  begin  with  the 
birth  of  an  unborn  child,  and  end  at  his  coming  of  age; l  and  it  has 
now  been  so  held  in  In  re  Cattell* 

§  699  a.  The  Statute  of  55  and  56  Viet.  c.  58,3  restricts  accumu- 
lations for  the  purchase  of  land  to  cases  falling  within  this  class  IV.4 

§  699  6.  Provisions  in  a  will  authorizing  the  employment  of 
income  for  "maintaining  in  good  habitable  repair  houses  and 
tenements  on  the  property,"  or  in  rebuilding,  reinstating  or  sub- 
stantially repairing  them,  are  not  within  the  Thellusson  Act.5 

§  700.  An  important  question  under  the  Thellusson  Act  is  to  de- 
termine what  becomes  of  income  which  the  settlor  or  testator  has  di- 
rected to  be  accumulated,  but  which  the  Act  forbids  to  be  accumulated, 
and  which  it  provides  shall  "go  to  and  be  received  by  such  person  or 
persons  as  would  have  been  entitled  thereto  if  such  accumulation 
had  not  been  directed." 6  If  there  is  a  vested  gift  in  possession, 
the  income  released,  by  the  Act,  from  accumulation  goes  to  the  per- 
sons entitled  to  the  estate.7  But  when  there  is  no  vested  interest,  or 
when  the  possession  of  a  vested  interest  is  postponed,  there  is,  as 
has  been  said,8  no  acceleration,  and  it  remains,  therefore,  to  consider 
what  becomes  of  the  income  during  the  interim. 

i  1  Jarm.   Wills  (6th   ed.)  382.  «  Harg.    Thel.    Act,    §§  127    et 

3  Dav.  Free.  Conv.  (3d  ed.)  178,  seq. 

note,  469,  note.     Marsden,   Perp.  7  Trickey  v.  Trickey,  3  Myl.  & 

337,  338.    Harg.  Thel.  Act,  §§  95-  K.  560,  565.    Clulow's  Trust,  1  J. 

107.    See  Wilson  v.  Wilson,  1  Sim.  &  H.  639.    Coombe  v.  Hughes,  34 

N.  s.  288;  Sidney  v.  Wilmer,  4  De  Beav.  127;  2  De  G.  J.  &  8.  657. 

G.  J.  &  S.  84.    But  see  In  re  Daw-  Harbin   v.   Masterman,    L.   R.    12 

son,  13  The  Reports,  633.  Eq.  559;  [1894]  2  Ch.  184.    1  Jarm. 

»  [1907]  1  Ch.  567;  [1914]  1  Ch.  Wills    (5th   ed.)    281.     Ogilvie   v. 

177.  Kirk  Session  of  Dundee,  8  Dunlop, 

1  §  686,  note,  ante.  C.   of   Seas.    1229.     Mackenzie   tv 

4  See  In  re  Dawson,  13  The  Re-  Mackenzie,  4   Rettie,  C.   of   Sess. 

ports,  633.  962.     Maxwell  v.  Maxwell,  5  Rettie, 

•  Vine  v.  Raleigh,  [1891]  2  Ch.  C.  of  Sess.  248.    Smyth  v.  Kinloch, 

13.    In  re  Mason,  [1891]  3  Ch.  467.  7  Rettie,  C.  of  Sess.  1176.    Colqu- 

See  §  693,  ante;    In  re  Hurlbatt,  noun  v.   Colquhoun's  Trustees,  19 

[1910]  2  Ch.  553.    See  also  St.  44  Rettie,  C.  of  Sess.  946.    See  Burgh 

&  45  Viet.  (1881),  c.  41,  §  42,  giv-  of  Ayr  v.  Shaw,  12  Sc.  L.  T.  R. 

ing  powers  to  trustees  to  accumu-  126. 

late  income  during  minorities.    Cf .  8  §  694,  ante. 
93  Law  Times,  267. 


APPENDIX. 


543 


§  701.  First.  As  to  Land.  —  If  land  is  given  in  trust  to  accumulate 
the  income,  the  income,  beyond  the  time  allowed  by  the  Act,  goes  as 
in  other  void  devises;  that  is,  at  common  law  to  the  heir;  under  the 
Wills  Act l  (1837)  to  the  residuary  devisee.2  In  case  there  is  no  heir  or 
residuary  devisee,  then  it  goes  to  the  Crown  by  escheat.3 

§  702.  The  heir's  interest  will  be  generally  either  an  interest  pur 
auter  vie  or  a  leasehold  interest,  and  on  his  death,  therefore,  any 
subsequently  accruing  income  will  go  to  his  executor  or  adminis- 
trator, and  not  to  his  heir.4 


1  1  Viet.  c.  26,  §  25. 

2  §  248,  ante.     Smith  v.  Lomas, 
33  L.  J.  Ch.  578.    Eyre  v.  Marsden, 
2  Keen,  564,  574.    Sewell  v.  Denny, 
10  Beav.  315.     Halford  v.  Stains, 
16  Sim.  488.    Nettleton  v.  Stephen- 
son,  3  De  G.  &  Sm.  366.    Wildes  v. 
Davies,  1  Sm.  &  G.  475,  484.    Ed- 
wards v.  Tuck,  3  De  G.  M.  &  G.  40. 
Green  v.  Gascoyne,  4  De  G.  J.  &  S. 
565,  572.    See  Campbell's  Trustees 
v.  Campbell,  18  Rettie,  C.  of  Sess. 
992;  Smith  v.  Glasgow   Infirmary, 
[1909]  Sessions  Cases,  1231;  Dibbs 
v.  Harrington,  15  N.  S.  Wales   R. 
Eq.  149. 

s  Weatherall  v.  Thornburgh,  8 
Ch.  D.  261. 

4  Sewell  v.  Denny,  10  Beav.  315. 
In  1  Jarm.  Wills  (4th  ed.)  313,  it 
is  said  that  before  the  Wills  Act,  1 
Viet.  c.  26,  §  6,  the  interest  pur 
auter  vie  would  have  gone  to  the 
heir's  hen-;  and  Halford  v.  Stains, 
16  Sim.  488,  496,  seems  to  have 
been  decided  on  that  ground;  see 
also  Marsden,  Perp.  339.  But  the 
provision  in  the  Wills  Act  that  an 
estate  pur  auter  vie  shall  go  to  the 
personal  representative  is  merely  a 
re-enactment  of  the  Statute  of 
Frauds  (29  Car.  II.  c.  3),  §  12,  and 
the  St.  of  14  Geo.  II.  c.  20,  §9; 
and  equitable  interests  are  within 
the  latter  statutes.  Withers  v. 


Withers,  Amb.  151.  Jickling,  Eq. 
Est.  193.  And  the  statement  in  1 
Jarm.  Wills  (6th  ed.)  391,  is  that 
"his  interest  passes  to  his  executor 
or  administrator  and  not  to  his 
heirs." 

In  Barrett  v.  Buck,  12  Jur.  771, 
land  was  devised  in  1820  to  trus- 
tees, in  trust  to  sell,  and  hold  the 
proceeds  in  trust  to  accumulate 
the  income  during  several  lives.  It 
was  admitted  by  all  parties  that, 
the  heir  having  died,  the  income  of 
the  proceeds  during  these  lives  after 
twenty-one  years  had  elapsed  went 
to  the  heir's  executor.  Mr.  Jar- 
man's  editors,  1  Jarm.  Wills  (4th 
ed.)  313,  think  that  this  admission 
should  not  have  been  made;  and  in 
this  they  are  followed  by  Mr.  Mars- 
den, Perp.  339,  note  (c),  where 
"heir"  is  a  misprint  for  "heir's 
executor."  But  the  admission 
seems  correct,  both  on  the  ground 
above  stated,  viz.  that  before  as 
well  as  after  the  Wills  Act  an  in- 
terest pur  auter  vie  went  to  the  ex- 
ecutor; and  also,  in  the  second 
place,  because,  even  though  income 
of  the  unconverted  land  would  have 
gone  to  the  heir's  heir,  the  income 
of  the  proceeds  would  go  to  his  ex- 
ecutor, for  while  the  conversion  did 
not  deprive  the  heir  of  his  interest 
in  the  land,  Eyre  v.  Marsden,  2 


544 


THE   RULE   AGAINST   PERPETUITIES. 


§703.  When  the  trust  to  accumulate  is  a  charge  on  the  land, 
and  not  an  estate  therein,  the  income,  after  the  period  for  ac- 
cumulation allowed  by  the  Act  has  passed,  goes  to  the  persons 
entitled  to  the  estates  free  from  the  charge.  This  is,  in  truth,  a 
case  where  there  is  a  present  estate  given,  with  a  void  provision  for 
accumulation.1 

§  704.  Second.  As  to  Personal  Property.  —  Income  released  from 
accumulation  by  the  Act,  when  there  is  no  present  gift,  goes  to  the 
residuary  legatee;  or  if  there  is  no  residuary  legatee,  or  if  it  is  the 
income  of  the  residue,  or  part  of  it,  which  the  testator  has  directed 
accumulated,  then  to  the  next  of  kin; 2  or,  if  there  be  no  next  of  kin, 
then  to  the  Crown.3 

§  705.   If  the  property  be  partly  real,  partly  personal,  the  income 


Keen,  564,  574,  575,  In  re  Perkins, 
101  L.  T.  R.  345,  yet  he  took  the 
proceeds  as  what  they  were,  —  per- 
sonal estate.  1  L.  C.  in  Eq.  (5th 
ed.)  967,  968.  And  the  remark  of 
Mr.  Jarman's  editors  on  Barrett  v. 
Buck  is  omitted  in  the  fifth  and 
sixth  editions.  1  Jarm.  Wills  (5th 
ed.)  283,  (6th  ed.)  391. 

1  §  700,  ante.  Shaw  v.  Rhodes, 
1  Myl.  &  Cr.  135;  sub  nom.  Evans 
v.  Hellier,  5  Cl.  &  F.  114.  Clulow's 
Trust,  1  J.  &  H.  639.  But  it  should 
be  observed  that  when  an  exist- 
ing charge  on  land  is  devised,  and 
an  accumulation  of  the  income 
directed,  income,  the  accumulation 
9f  which  is  forbidden  by  the  Act, 
passes  to  the  testator's  next  of  kin. 
Simmons  v.  Pitt,  L.  R.  8  Ch.  978. 

1  Haley  v.  Bannister,  4  Mad. 
275,  277,  278.  Crawley  v.  Crawley, 
7  Sim.  427.  M'Donald  v.  Bryce,  2 
Keen,  276.  O'Neill  v.  Lucas,  Id. 
313.  Eyre  v.  Marsden,  Id.  564. 
Pride  v.  Fooks,  2  Beav.  430,  437. 
Ellis  t;.  Maxwell,  3  Beav.  587.  A.  G. 
v.  Poulden,  3  Hare,  555.  Elborne 
v.  Goode,  14  Sim.  165.  Morgan 
v.  Morgan,  4  De  G.  &  Sm.  164, 


175.  Wilson  v.  Wilson,  1  Sim.  N.  s. 
288,  300.  Bourne  v.  Buckton,  2 
Sim.  N.  s.  91.  Jones  v.  Maggs,  9 
Hare,  605.  Edwards  v.  Tuck,  3 
De  G.  M.  &  G.  40.  Burt  v.  Sturt, 
10  Hare,  415.  Drakeley's  Estate, 
19  Beav.  395.  Oddie  v.  Brown,  4 
De  G.  &  J.  179.  Mathews  v.  Keble, 
L.  R.  3  Ch.  691.  Talbot  t;.  Jevers, 
L.  R.  20  Eq.  255.  Weatherall  v. 
Thomburgh,  8  Ch.  D.  261.  Re 
Parry,  60  L.  T.  R.  489.  Elder's  Trus- 
tees v.  Treasurer  of  Free  Church, 
20Rettie,  C.  of  Sess.  2.  Smith  v. 
Glasgow  Infirmary,  [1909]  Sessions 
Cases,  1231.  Higginbotham  v.  Bar- 
rett, 14  Viet.  L.  R.  803.  Lazarus 
v.  Lazarus,  Id.  806,  note.  In  re 
Stevens,  [1912]  Viet.  L.  R.  194.  See 
Keith  v.  Keith,  19  Dunlop,  C.  of 
Sess.  1040;  Lord  v.  Colvin,  23 
Dunlop,  C.  of  Sess.  Ill;  Pursell  v. 
Elder,  4  Macq.  992;  Burgh  of  Ayr 
v.  Shaw,  12  Sc.  L.  T.  Rep.  126; 
Dibbs  v.  Barrington,  15  N.  S.  Wales 
R.  Eq.  149. 

1  Weatherall  v.  Thomburgh,  8 
Ch.  D.  261.  Harbin  v.  Masterman, 
L.  R.  12  Eq.  559. 


APPENDIX.  545 

of  the  realty  goes  to  the  heir  or  residuary  devisee;  of  the  personalty, 
to  the  next  of  kin  or  residuary  legatee.1 

§  706.  When  an  accumulation  has  been  lawfully  made,  e.  g.  for 
twenty-one  years  after  the  testator's  death,  a  question  arises  as  to 
the  income  of  the  accumulations.  The  income  of  the  accumulations 
of  income  from  personalty  (unless  ordered  to  be  invested  in  land) 
must  go  to  the  residuary  legatees  or  next  of  kin.  The  accumula- 
tions of  the  income  of  realty  (unless  ordered  to  be  invested  in  realty) 
would  seem,  in  spite  of  their  origin,  to  be  personalty,  and  their  income 
therefore  also  to  go  to  the  residuary  legatees  or  next  of  kin.  Mr. 
Jarman's  editors 2  say,  "The  accumulations  of  rents  and  profits  seem 
to  preserve  their  character  of  realty,  so  that  the  heir  is  entitled  to  the 
income  of  such  accumulations." 3  Eyre  v.  Marsden,4  cited  by  them  for 
this,  is  not  a  very  satisfactory  authority  on  the  point.  It  was  there  held 
that  when  the  purposes  for  which  the  conversion  of  land  was  ordered 
partly  failed,  the  proceeds  of  the  land  were  to  be  considered  as  realty, 
and  that  the  income  beyond  the  lawful  period  of  accumulation  went 
to  the  heir.  The  language  of  the  decision  appears  to  carry  to  the  heir 
also  the  income  of  the  accumulations  lawfully  made;  but  no  reason 
is  given  for  this,  and  the  attention  of  the  Court  does  not  seem  to  have 
been  directed  to  the  point.5 

§  707.  When  there  is  a  present  gift  to  one  for  life,  with  remain- 
der over,  and  a  void  provision  for  accumulation,  the  released  income 
goes  to  the  life  tenant  during  his  life.6 

§  708.  When  there  is  no  present  gift,  and  therefore  the  released 
income  falls  into  the  residue,  but  the  residue  is  given  to  one  for  life, 
with  remainder  over,  it  was  held  in  Crawley  v.  Crawley  7  that  the 
released  income  was  to  form  part  of  the  capital  of  the  residue.8 
But  this  seems  wrong;  if  the  income  directed  to  be  accumulated  in 
violation  of  the  Act  is  added  to  the  principal  of  the  residue  during 

1  Eyre  v.  Marsden,  2  Keen,  654.  8  Fitch  v .  Weber,  6  Hare,  145, 

Ralph  v.  Carrick,  5  Ch.  D.  984,  997,  cited  in  1  Jarm.  Wills  (5th  ed.) 

998.  See  Talbot  v.  Jevers,  L.  R.  282,  does  not  bear  on  this  question. 
20  Eq.  255;  Harrison  v.  Harrison,  «  Trickey  v.  Trickey,  3  Myl.  & 

7  Ont.  L.  R.  297.  K.  560,  565.  Coombe  v.  Hughes, 

1  1  Jarm.  Wills  (6th  ed.)  388  34  Beav.  127;  2  De  G.  J.  &  S.  657. 
et  seq.  7  7  Sim.  427. 

1  So  Marsden,  Perp.  342.  8  So  also  in  O'Neill  v.  Lucas,  2 

4  2  Keen,  564.  Keen,  313,  316. 


546  THE  BULB  AGAINST  PERPETUITIES. 

the  life  of  the  life  tenant,  the  income  is  being  accumulated,  though 
not  compounded,  until  the  Me  tenant's  death;  and  therefore  the 
decision  of  Malins,  V.  C.,  in  Re  Phillips,1  that  the  life  tenant  should 
have  the  whole  of  the  released  income,  seems  correct,2  and  Re 
Phillips  was  followed  in  Otterson  v.  Gould.3  But  Crawley  v.  Crawley 
was  followed  in  Re  Pope*  Mr.  Charles  Sweet  says: 5  "The  decision 
in  Re  Phillips  seems  on  principle  to  be  correct  (see  Gray,  Perp. 
§  708);  but  the  rule  laid  down  in  Crawley  v.  Crawley  may  now  be 
considered  as  established  beyond  question."  6 

§  709.  The  second  section  of  the  Act  exempts  three  classes  of 
provisions  from  its  operation. 

§  710.  First.  "Any  provision  for  payment  of  debts  of  any  grantor, 
settler,  or  devisor,  or  other  person  or  persons. "  7  This  includes  the 
debts  of  persons  other  than  those  making  the  provisions.  Such  was 
the  opinion  of  Lord  St.  Leonards,  C.,  in  Barrington  v.  Liddell*  in  op- 
position to  that  of  Turner,  V.  C.,  in  the  same  case.9  The  clause 
applies  to  contingent  debts10  and  to  future  debts.11  The  accumulation 
must  be  bona  fide  for  paying  debts  only,  and  not  for  that  and  other 
purposes.12 

§  711.  Second.  "Any  provision  for  raising  portions  for  any  child 
or  children  of  any  grantor,  settlor,  or  devisor,  or  any  child  or  children 
of  any  person  taking  any  interest  under  any  such  conveyance,  settle- 
ment, or  devise." 13  The  portion  may  have  been  created  by  an  instru- 

1  49  L.  J.  Ch.  198.  264;  1  De  G.  F.  &  J.  211.    In  re 

8  See  Morgan  v.  Morgan,  4  De  Hurlbatt,  [1910]  2  Ch.  553. 

G.  &  Sm.  164.    Harg.  Thel.  Act,          "  See  Barrington  v.  Liddell,  2 

§  71.  De  G.  M.  &  G.  480,  490;  Varlo  v. 

»  11  N.  Z.  L.  R.  577.  Faden,  27  Beav.  255,  264;  1  De*G. 

•  [1901]  1  Ch.  64.  F.  &  J.  211.    Cf.  Smyth  v.  Kinloch, 
»  1  Jarm.  Wills  (6th  ed.)  389,  7  Rettie,  C.  of  Sees.  1176. 

note  («).  «  Mathews  v.  Keble,  L.  R.  3 

•  See    Theob.   Wills    (7th    ed.)      Ch.  691,  698,  699.     See  Varlo  v. 
619.  Faden,  27  Beav.  255,  265;  1  De  G. 

1  Harg.    Thel.    Act,    §§  138    et  F.  &  J.  211,  224,  225;  Tewart  v. 

teq.  Lawson,  L.  R.  18  Eq.  490;  In  re 

•  2  De  G.  M.  &  G.  480,  497.  Heathcote,  [1904]  1  Ch.826;  1  Jarm. 

•  10  Hare,  429,  434;    and   see  Wills  (6th  ed.)  367;  Mareden,  Perp. 
Varlo  v.  Faden,  27  Beav.  255,  264;  343,  344. 

1  De  G.  F.  &  J.  211,  224;  Mathews  "  See  Challis,  Real  Prop.  (3d 
v.  Keble,  L.  R.  3  Ch.  691.  ed.)  204;  Lewin  on  Trusts  (10th 

10  Varlo  v.  Faden,  27  Beav.  255,      ed.)  95,  96. 


APPENDIX. 


547 


merit  prior  to  that  directing  the  accumulation,1  or  it  may  be  created* 
by  the  instrument  directing  the  accumulation.3  But  a  gift  of  the 
whole  of  a  testator's  estate,4  or  of  a  residue  comprising  the  bulk  of  it,* 
is  not  a  portion.  A  gift  of  a  specific  sum  to  be  accumulated  for  chil- 
dren has  been  held  to  be  a  portion; 6  but  the  point  is  doubtful.  A 
gift  to  the  survivors  of  the  children  of  a  class  of  six  or  seven  persona 
has  been  held  not  a  portion.7  If  the  parent  is  to  share  in  accumulations 
which  may  extend  beyond  the  time  fixed  by  the  first  section  of  the 
Act,  the  gift  is  not  a  portion.8  If  there  is  a  trust  to  accumulate  a  por- 
tion for  the  children  of  A.,  and  he  never  has  any  children,  although  the 
accumulation  will  continue  through  A.'s  life,  the  accumulations  will 
not  go  on  his  death  as  it  is  directed  that  they  shall  go  in  default  of 
children,  but  they  will  belong  to  the  persons  who  would  have  been 
entitled  to  them  had  there  been  no  provision  for  accumulation.9  The 
children  must  be  legitimate;  if  any  are  illegitimate,  the  whole  gift  is 
within  the  Act.10  The  interest  taken  by  a  person  in  order  to  bring  a  por- 


1  Barrington  v.  Liddell,  10  Hare, 
429,  431,  432;  2  De  G.  M.  &  G. 
480,   498,   et  seq.    (see   Halford  v. 
Stains,  16  Sim.  488,  496). 

2  Notwithstanding     Halford     v. 
Stains,  ubi  sup. 

1  Beech  v.  St.  Vincent,  3  De  G. 
&  S.  678.     In  re  Stephens,  [1904] 

1  Ch.  322.    See  Bourne  v.  Buckton, 

2  Sim.  N.  s.  91,  96;  Barrington  v. 
Liddell,  10  Hare,  429,  431;  2  De  G. 
M.  &  G.  480,  498  et  seq.;  1  Jarm. 
Wills  (6th  ed.)  384. 

4  Wildes  v.  Davies,  1  Sm.  &  G. 
475. 

5  Shaw  v.  Rhodes,  1  Myl.  &  Cr. 
135,  159;  sub  nom.  Evans  v.  Hellier, 
1  Cl.  &  F.  114.    Eyre  v.  Marsden,  2 
Keen,  564,  573.     Bourne  v.  Buck- 
ton,   2   Sim.   N.   s.   91.     Edwards 
v.  Tuck,  3   De  G.   M.  &  G.  40. 
Mathews  v.  Keble,  L.  R.  3  Ch.  691, 
696,  697.    Re  Walker,  54  L.  T.  R. 
792.   Mackay's  Trustees  v.  Mackay, 
[1909]  Sessions  Cases,  139. 

•  Middleton  v.   Losh,  1  Sm.  & 


G.  61.  St.  Paul  v.  Heath  (before 
Stuart,  V.  C.),  13  L.  T.  N.  s.  271. 
See  Barrington  t>.  Liddell,  2  De  G. 
M.  &  G.  480;  Colquhoun's  Trus- 
tees v.  Colquhoun,  [1907]  Sessions 
Cases,  346;  1  Jarm.  Wills  (6th  ed.) 
385,  386.  Contra  are  Jones  v.  Maggs, 
9  Hare,  605;  Morgan  v.  Morgan, 
4  De  G.  &  Sm.  164,  170  et  seq.;  and 
see  Tud.  L.  C.  in  Real  Prop.  (4th 
ed.)  635-637;  Theob.  Wills  (7th  ed.) 
617,  618;  Harg.  Thel.  Act,  §§  153 
et  seq.;  Marsden,  Perp.  345,  346; 
and  cf.  Burt  v.  Sturt,  10  Hare,  415; 
Cain  v.  Watson,  [1910]  Viet.  L.  R. 
256,  274  et  seq. 

1  Drewett  v.  Pollard,  27  Beav. 
196;  and  see  Burt  v.  Sturt,  10  Hare, 
415,  426,  427. 

8  Watt  v.  Wood,  2  Dr.  &  Sm. 
56. 

»  Clulow's  Trust,  1  J.  &  H. 
639. 

10  Shaw  v.  Rhodes,  1  Myl.  &  Cr. 
135,  159. 


548  THE   RULE   AGAINST  PERPETUITIES. 

tion  for  his  children  within  this  exception  need  not  be  an  interest  in  the 
property  of  which  the  income  is  to  be  accumulated.  It  is  enough  if  such 
person  takes  any  interest,  however  small  or  remote,  under  the  will.1 
If  the  portions  are  for  a  class  of  children,  some  of  whose  parents  take 
no  interest  under  the  settlement  or  will,  the  whole  gift  is  void.2 

§  712.  Third.  "Any  direction  touching  the  produce  of  timber 
or  wood  upon  any  lands  or  tenements."  3 

§  713.  The  question  of  costs  in  suits  involving  the  application  of 
the  Thellusson  Act  has  been  discussed  in  several  cases.4 

§  714.  Originally  the  Act  did  not  "extend  to  any  disposition 
respecting  heritable  property"  in  Scotland.5  Movable  property  in 
Scotland  was,  however,  within  the  Act.  In  Ogilvie  v.  Kirk  Session 
of  Dundee 6  land  in  Scotland  was  given  to  trustees  with  discretion 
to  sell,  and  after  payments  of  debts  and  legacies  they  were  directed 
to  pay  £2,000  or  the  "balance"  of  the  estate  to  a  charity.  It  was 
held  that  this  gift  was  within  the  Thellusson  Act,  as  of  movable 
property.  In  1848,  by  St.  11  &  12  Viet.  c.  36,  §  41,  the  operation 
of  the  Act  was  extended  to  heritable  property  in  Scotland.  This 
last  Statute  does  not  affect  deeds  made  before  its  passage.7  The 
Thellusson  Act  does  not  extend  to  Ireland.8  It  is  in  force  in  Victoria.9 

1  Harrington  v.  Liddell,  2  De  G.  •  8  Dunlop,  C.  of  Seas.  1229. 

M.  &  G.  480,  reversing  s.  c.  10  Hare,  7  Keith   v.  Keith,    19    Dunlop, 

429.    See  Evans  v.  Hellier,  5  Cl.  &  C.  of  Seas.  1040.     McLarty  v.  Mo- 

F.  114,  126,  127;  Edwards  v.  Tuck,  Laverty,  2  Macph.  489. 

3  De  G.  M.  &  G.  40,  63;  Bourne  «  Qn  the  conflict  between  Eng- 
0.  Buckton,  2  Sim.  N.  s.  91,  101;  lish  and  Scotch  and  English  and 
Morgan  v.  Morgan,  4  De  G.  &  Sm.  Irish   law  on   the   subject   of   the 
164,  174;  1  Jarm.  Wills  (6th  ed.)  Thellusson    Act,    see    Fordyce    v. 
387.  Bridges,   2  Phil.   497,   515;   §263, 

1  Eyre  v.  Marsden,  2  Keen,  564,  ante;    Macpherson   v.   Stewart,   28 

573.  L.  J.  Ch.  177;  32  L.  T.  143;  §§  259, 

1  See  Harg.  Thel.  Act,  §§  163  264,  note,  ante;  Freke  v.  Car- 
et seq.;  Marsden,  Perp.  346,  347.  bery,  L.  R.  16  Eq.  461;  §§  259, 

4  See  Eyre  v.  Marsden,  4  Myl.  <fe  264,  ante;  Ellis  v.  Maxwell,  12  Beav. 

Cr.  231  (reversing  on  this  question  104;  §  259  a,  ante;  Heywood  v.  Hey- 

s.  c.  2  Keen,  564);  Barrett  v.  Buck,  wood,  29  Beav.  9;  §  261,  ante. 
12  Jur.  771;  Elborne  v.  Goode,  14  «  Hastie  v.  Arsdie,  6  W.  W.  & 

Sim.  165,  178;  Ralph  v.  Carrick,  5  A'B.    Eq.    91.      Higginbotham    v. 

Ch.  D.  984,  998;  Green  v.  Gascoyne,  Barrett,  14  Viet.  L.  R.  803.    Laza- 

4  De  G.  J.  &  S.  565.  rus  v.  Lazarus,  Id.  806,  note.    Cain 

8  40  Geo.  III.  c.  98,  §  3.     See      v.  Watson,  [1910]  Viet.  L.  R.  256. 
§§  759,  760,  post. 


APPENDIX. 


549 


It  is  declared  by  the  Ontario  St.  of  52  Viet.  (1889),  c.  10,  §  2,  to  have 
been  and  to  be  in  force  hi  Ontario,  contra  to  what  had  been  held  hi 
Harrison  v.  Spencer.1 

§  715.  Pennsylvania.  —  By  the  St.  of  April  18, 1853,  §  9,2  a  Statute 
suggested  by  the  Thellusson  Act,  accumulations  are  restrained. 
The  text  of  the  Statute  is  given  in  a  note.3  By  the  St.  of  April  26, 


1  15  Ont.  692.     See  Harrison  t>. 
Harrison,  7  Ont.  L.  R.  297. 

The  most  elaborate  treatise  on 
the  Thellusson  Act  is  by  John  F. 
Hargrave,  published  in  1842;  it 
has  never  been  reprinted. 

This  appendix  is  much  indebted 
to  Jarman  on  Wills  and  Marsden  on 
Perpetuities.  The  cases  arising  in 
Scotland  are  not,  however,  in  those 
treatises.  They  have  been  here 
added.  See  also  Tud.  L.  C.  in 
Real  Prop.  (4th  ed.)  625-638;  and 
Theob.  Wills  (5th  ed.)  534-540.  A 
series  of  articles  of  slight  value  will 
be  found  64  Law  T.  457;  65  Law 
T.  41,  63,  80,  136. 

2  4  Bright.  Purd.  Dig.  (13th  ed.) 
(1910)  4036.     A  full  discussion  of 
this  Statute   and   of   the  decisions 
under  it  will  be  found.     Foulke, 
Treatise,  §§  623-697. 

3  "No  person  or  persons  shall, 
after  the  passing  of  this  Act,  by  any 
deed,   will  or  otherwise,   settle  or 
dispose   of    any   real    or   personal 
property,  so  and  in  such  manner 
that  the  rents,  issues,  interests,  or 
profits  thereof  shall  be  wholly  or 
partially     accumulated,     for     any 
longer  term  than  the  life  or  lives 
of  any  such  grantor  or  grantors, 
settler  or  settlers,  or  testator,  and 
the  term  of  twenty-one  years  from 
the   death   of    any    such    grantor, 
settler  or  testator;  that  is  to  say, 
only  after  such  decease  during  the 
minority  or  respective  minorities, 


with  allowance  for  the  period  of 
gestation  of  any  person  or  persons 
who,  under  the  uses  or  trusts  of 
the  deed,  will  or  other  assurance 
directing  such  accumulation,  would, 
for  the  time  being,  if  of  full  age,  be 
entitled  unto  the  rents,  issues,  in- 
terests and  profits  so  directed  to 
accumulate.  And  in  every  case 
where  any  accumulation  shall  be 
directed  otherwise  than  as  afore- 
said, such  direction  shall  be  null 
and  void,  in  so  far  as  it  shall  ex- 
ceed the  limits  of  this  Act;  and  the 
rents,  issues,  interests  and  profits 
so  directed  to  be  accumulated,  con- 
trary to  the  provisions  of  this  Act, 
shall  go  to  and  be  received  by  such 
person  or  persons  as  would  have 
been  entitled  thereto,  if  such  ac- 
cumulation had  not  been  directed: 
Provided,  That  any  donation,  be- 
quest or  devise  for  any  literary, 
scientific,  charitable  or  religious 
purpose,  shall  not  come  within  the 
prohibition  of  this  section;  which 
shall  take  effect  and  be  in  force,  as 
well  in  respect  to  wills  heretofore 
made  by  persons  yet  living  and  of 
competent  mind,  as  in  respect  to 
wills  hereafter  to  be  made:  And 
provided,  That  notwithstanding  any 
direction  to  accumulate  rents,  is- 
sues, interest  and  profits,  for  the 
benefit  of  any  minor  or  minors,  it 
shall  be  lawful  for  the  proper  court 
as  aforesaid,  on  the  application  of 
the  guardian,  where  there  shall  be 


550  THE   BULB   AGAINST  PERPETUITIES. 

1855,  §  12,1  charitable  corporations  and  associations  are  forbidden 
to  accumulate  the  income  of  their  property  so  as  to  acquire  a  capital 
in  excess  of  limits  fixed  by  statute. 

§  716.  Under  the  Pennsylvania  Statute  of  1853,  as  under  the 
Thellusson  Act,  a  provision  for  accumulation  which  transcends  the 
statutory  limits  is  not  void  in  toto,  but  only  for  the  excess.2 

§  717.  The  Statute  allows  accumulation  only  during  the  minority 
of  a  person  who  would,  for  the  time  being,  if  of  full  age,  be  entitled 
to  the  income  so  directed  to  accumulate.  Therefore  income  cannot 
be  accumulated  during  the  minority  of  A.,  unless  A.  would  be  en- 
titled to  the  income  if  of  full  age.  Suppose  property  is  given  in 
trust  to  pay  the  income  to  A.  for  life,  and  on  A.'s  death  to  transfer 
the  principal  to  B.,  and  there  is  a  direction  to  accumulate  the  in- 
come during  A.'s  minority,  and  to  add  the  accumulations  to  the 
principal.  Such  a  direction  would  certainly  appear  to  be  authorized 
by  the  Statute.  If  A.  were  of  full  age,  he  would  be  entitled  to  the 
income;  and  that  is  enough,  according  to  the  Statute,  to  make  the 
accumulation  lawful.  If  A.  would  get  the  income  if  over  age,  accumu- 
lations made  while  he  is  under  age  ought  to  be  good,  to  whomsoever 
they  go,  for  there  is  nothing  in  the  Statute  requiring  them  to  go  to  A. 
or  any  other  person.  Nevertheless,  it  has  been  held  that  such  a 
direction  is  void  altogether,  and  however  little  such  a  doctrine  is  justi- 
fied by  the  Statute,  it  is  now  settled.8 

no  other  means  for  maintenance  269;  Conrow's  Appeal,  3  Pennyp. 

or  education,  to  decree  an  adequate  356,  366;  Leisenring's  fistate,  237 

allowance  for    such    purpose,   but  Pa.  60,  67;  Foulke,  Treatise,  §§  634, 

in  such   manner   as  to    make   an  644. 

equal  distribution  among  those  hav-  s  Washington's  Estate,   75   Pa. 

ing  equal    rights   or  expectancies,  102;   affirming  s.  c.  8  Phila.   182. 

whether,  at  the  time  being,  minors  Stille's  Appeal,   4   W.   N.    C.   42; 

or  of  lawful  age."     The  Pennsyl-  affirming  s.  c.  11  Phila.  31;  1  W.  N. 

vania  Statute  is  considered  in  con-  C.  249.    Howell's  Estate,  5  W.  N. 

nection  with   the  English  Act  in  C.  430.     Carson's  Appeal,  99  Pa. 

Scott's   Trusts   for   Accumulation,  325.     Furness  Minors'  Estate,   14 

printed  at  the  end  of  the  American  W.  N.  C.  391.     Edwards's  Estate, 

edition  (1888)  of  Lewin  on  Trusts.  190  Pa.  177.    Farnum's  Estate,  191 

See  Foulke,  Treatise,  §§  623-625.  Pa.  75.    White's  Estate,  2  Pa.  Dist. 

»  1  Bright.  Purd.  Dig.  (13th  ed.)  R.  207;  8  Pa.   Dist.  R.  33.     See 

(1910)  594.  Foulke,  Treatise,  §§  632,  639,  648. 

*  See  Brown  v.  Williamson,  36  But  see   Grim's  Estate,   15  Phila. 

Pa.  338;  Butler  v.  Butler,  9  Phila.  603,  605;  12  W.  N.  C.  354,  356.    Cf. 


APPENDIX. 


551 


§  718.  The  released  income  goes,  as  under  the  Thellusson  Act, 
to  the  heir,  next  of  kin,  or  residuary  devisee  or  legatee; 1  unless, 
however,  there  is  a  present  gift  in  possession,  in  which  case,  as  is 
also  the  rule  under  the  Thellusson  Act,  the  released  income  goes 
to  the  persons  who  would  have  taken  it  had  there  been  no  direc- 
tion to  accumulate.* 


McKee's  Appeal,  96  Pa.  277,  284, 
285. 

In  Brown  v.  Williamson,  36  Pa. 
338,  property  was  devised  to  be 
held  by  A.  for  the  use  of  such  chil- 
dren as  A.  might  have  at  his  death, 
and  if  he  should  die  without  issue, 
then  for  the  use  of  those  who  should 
then  be  the  testator's  heirs;  and  it 
was  directed  that  A.  should  have  a 
reasonable  support  out  of  the  trust 
fund  for  personal  services  rendered. 
It  was  objected  that  this  involved 
an  accumulation  during  the  life  of 
A.;  but  the  Court  answered  that  the 
trust  might  be  transgressive,  but 
that  the  Act  avoided  only  the  ex- 
cess in  transgressive  trusts.  The 
Court  seem  to  have  overlooked  the 
fact  that  under  the  Pennsylvania 
Statute  accumulation  is  allowed 
only  during  the  actual  minority  of 
a  person  who  would  be  entitled  to 
the  income  if  of  full  age.  It  does 
not  appear  that  A.'s  children  were 
minors,  and  they  were  certainly 
not  entitled  to  the  income  until 
the  death  of  A.  See  Foulke, 
Treatise,  §  631. 

In  Williams's  Estate,  13  Pbila. 
325,  8  W.  N.  C.  310,  a  testatrix 
gave  the  residue  of  her  estate  in 
trust  for  her  son,  in  case  he  could 
be  found  within  twenty  years  after 
her  death.  It  was  held  by  the 
Orphans'  Court  of  Philadelphia 
that  this  provision  did  not  con- 
travene the  Statute.  The  case  is 


blindly  reported,  but  it  would  seem 
that  under  the  Statute  the  income 
should  have  gone  as  intestate  prop- 
erty. See  Foulke,  Treatise,  §  633. 

1  Matter  of  Sergeant,  11  Phila.  8. 
Mellon's  Estate,  16  Phila.  323. 
Grim's  Appeal,  109  Pa.  391. 
Howell's  Estate,  180  Pa.  515.  Mar- 
tin's Estate,  185  Pa.  51.  Edwards's 
Estate,  190  Pa.  177.  Kenworthy's 
Estate,  230  Pa.  606.  White's  Es- 
tate, 2  Pa.  Dist.  R.  207;  8  Pa.  Dist. 
R.  33.  See  Thouron's  Estate,  11 
W.  N.  C.  285;  Mitcheson's  Estate, 
15  Phila.  523;  11  W.  N.  C.  547.  See 
as  to  void  devises,  2  Bright.  Purd. 
Dig.  299,  pi.  23  (13th  ed.)  (1910), 
vol.  4,  §  5145. 

1  Brubaker's  Appeal,  1  Monag. 
447.  Schwartz's  Appeal,  119  Pa. 
337.  Sharpe's  Estate,  155  Pa.  289. 
Farnum's  Estate,  191  Pa.  75. 
Stiver's  Estate,  5  Pa.  C.  C.  113. 
Estate  of  Myer,  17  Phila.  425;  18 
Phila.  103.  Lutz's  Estate,  27  W.  N. 
C.  403;  20  Phila.  89;  9  Pa.  C.  C. 
294.  Weinmann's  Estate,  223  Pa. 
508.  Wright's  Estate,  227  Pa.  69. 
Roney's  Estate,  Id.  127.  See 
Washington's  Estate,  75  Pa.  102; 
StiUe's  Appeal,  4  W.  N.  C.  42; 
Carson's  Appeal,  99  Pa.  325;  Mat- 
ter of  Sergeant,  11  Phila.  8.  Cf. 
Wahl's  Estate,  20  Phila.  32;  26  W. 
N.  C.  249.  In  Howell's  Estate,  5 
W.  N.  C.  430,  was  not  the  gift  of 
the  residue  contingent,  and  ought 
not,  therefore,  the  accumulations 


552  THE   RULE  AGAINST  PERPETUITIES. 

§  719.  Suppose  property  is  devised  to  trustees  in  trust  to  apply 
so  much  of  the  income  as  they  deem  best  for  A.  during  his  life,  to 
add  any  surplus  to  the  principal,  and  on  A.'s  death  to  convey  the 
principal,  with  all  accumulations,  to  B.  Does  this  direction  con- 
travene the  provisions  of  the  Pennsylvania  Statute?  The  same 
question  might  arise  in  England  under  the  Thellusson  Act,  and 
modern  conveyances  in  England  recognize  that  such  provisions  for 
accumulation  are  obnoxious  to  that  Statute.1  But  the  English  Act 
sustains  provisions  for  accumulation  during  twenty-one  years,  and 
it  is  therefore  only  in  that  part  of  a  life  tenant's  interest  which  falls 
more  than  twenty-one  years  after  the  testator's  death  that  any  accu- 
mulation can  be  objected  to.  It  is  not  strange,  therefore,  that  the 
point  does  not  seem  to  have  actually  come  before  the  English  courts. 
But  in  Pennsylvania,  under  the  narrow  construction  of  the  Act 
which  has  been  adopted,2  directions  to  accumulate,  and  to  add  the 
accumulations  to  the  principal  of  the  fund  during  the  life  of  a  life 
tenant,  are  bad  altogether.  In  Matter  of  Sergeant 3  $20,000  were  be- 
queathed to  trustees  in  trust  to  pay  so  much  of  the  income  as  they 
should  deem  necessary  for  the  maintenance  of  the  testator's  son,  and 
to  accumulate  the  balance,  and  add  it  to  the  principal,  which  was 
given  over,  on  the  son's  death,  to  certain  specified  persons.  The 
Orphans'  Court  of  Philadelphia  held  that  this  provision  was  in  vio- 
lation of  the  Act  of  1853,  and  that  the  balance,  not  spent  for  the  son, 
was  part  of  the  residuary  estate.4 

§  720.  There  is  a  class  of  trusts  of  common  occurrence  in  Penn- 
sylvania,5 called  spendthrift  trusts,  by  which  trustees  are  authorized 
to  apply  the  income  of  a  fund  to  the  support  of  a  certain  person  for 
life,  with  a  gift  over  on  his  death.  There  is  no  express  direction 
what  shall  be  done  with  any  income  not  required  for  the  support 
of  such  person;  but  it  is  held  that  neither  the  cestui  que  trust  nor 
his  creditors  can  compel  the  trustees  of  such  a  trust  to  pay  the  whole 

to  have  gone  to  the  next  of  kin?  *  §  717,  ante. 

Perhaps  the  residuary  legatee  was  *  11  Phila.  8. 

the    next    of   kin.      See    Foulke,  *  See  Edwards's  Estate,  190  Pa. 

Treatise,    §§635,   640,    652,    679-  177. 

694.  •  See    the    Pennsylvania    cases 

1  4  Dav.  Free.   Conv.  (3d  ed.)  discussed  in   Gray,   Restraints  on 

168.     Hayes   &   Jarm.    Forms   of  Alienation  (2d  ed.),  §§  214-235  h. 
Wills  (8th  ed.)  215,  216. 


APPENDIX.  553 

income  to  him  or  them,1  and  that  any  accumulated  balance  does 
not  belong  to  the  cestui  que  trust  or  his  legal  representatives.1  How 
can  the  allowance  of  such  accumulations  be  reconciled  with  the  Act 
of  1853?  • 

§ 721.  In  Ashhurst  v.  Given*  which  was  decided  before  the  pas- 
sage of  the  Act  of  1853,  the  Court  seem  to  have  supposed  that  such 
an  accumulation  would  be  held  void  under  the  Thellusson  Act;  and 
in  Brown  v.  Williamson?  where  the  trust  created  seems  to  have 
been  considered  of  this  nature,  the  Court  said  that  it  might  be  trans- 
gressive,but  only  for  the  excess;6  but  since  that  time  such  trusts  have 
been  repeatedly  before  the  courts,  without  any  suggestion  that  they 
violated  the  Act  of  1853. 

§  722.  In  Barger's  Appeal7  a  testator  empowered  his  trustee,  at  the 
end  of  seven  years  from  his  death,  to  divide  the  residue  of  his  estate 
among  his  children  (or  if  any  should  die,  to  their  children  the  parent's 
share),  and  gave  the  trustee  the  power  to  retain  any  part  of  a  child's 
share  till  then,  and  directed  that  their  interest  was  not  to  vest  till 
then.  It  was  held  that  this  discretionary  right  in  the  trustee  to 
accumulate  did  not  conflict  with  the  Act.8  The  ground  would  seem 
to  be  that  the  power  was  discretionary,9  and  the  same  reason  would 
sustain  spendthrift  trusts.  There  appears  to  be  no  particular  cause 
why  a  discretionary  power  to  accumulate  should  be  made  an  excep- 
tion, —  the  Statute  is  in  very  positive  terms;  and  in  Matter  of  Ser- 
geant 10  such  an  express  discretionary  power  was  held  to  violate  the 
Statute;  yet  certainly  there  should  be  no  difference  between  an  express 
and  an  implied  discretion.11 

§  722  a.  In  Eberly's  Appeal 1J  a  testator  gave  the  residue  of  his 
property,  mostly  real  estate,  to  a  trustee  in  trust  to  manage  it  as  if 

1  Horwitz  v.  Norris,  49  Pa.  213,  •  See    also  Conrow's  Appeal,  3 
222.  Pennyp.  356,  366;  Foulke,  Treatise, 

2  Huber's  Appeal,  80  Pa.  348.  §  634. 

3  See    full    discussion,    Foulke,  10  11  Phila.  8;  §  719,  ante. 
Treatise,  §§  671-678.  u  See    Barger's    Appeal    justly 

4  5  W.  &  S.  323,  329,  330.  criticised    in    Grim's    Estate,     15 
6  36  Pa.  338,  341.                               Phila.  603;  12  W.  N.  C.  354. 

6  See    §  717,  note,    ante.  Cf.           12  The  author  was  originally  in- 
Brooks's  Estate,  140  Pa.  84.  debted  for  the  opinion  in  this  case 

7  100  Pa.  239.  to  the  kindness  of  A.  B.  Sharpe, 

8  See     Ashhurst's     Estate,  18      Esq.,  of  Carlisle,  Pa.    Eberly's  Ap- 
Phila.  37.  peal  is  now  reported,  110  Pa.  95. 


554  THE  RULE  AGAINST  PERPETUITIES. 

it  were  his  own  property,  to  keep  up  the  repairs  of  the  homestead, 
to  provide  for  the  maintenance  and  education  of  the  testator's  son 
J.,  and  upon  J.'s  reaching  twenty-one  to  pay  him  $500  annually 
until  he  reached  twenty-five;  then  if  J.  was  "a  sober  and  well  doing 
man,  competent  to  take  care  and  manage  his  estate,"  to  convey  and 
transfer  the  property  to  him;  but  if  J.  should  not  be  a  fit  person 
to  take  charge  of  the  estate,  the  testator  directed  that  he  should 
receive  $500  annually  for  life;  and  on  his  death  the  testator  gave  all 
the  property  to  the  heirs  of  J.  When  J.  reached  twenty-one  the 
accumulations  in  the  trustee's  hands  amounted  to  about  $5,000,  and 
J.  filed  a  petition  to  have  them  paid  over  to  him.  The  Court  ruled 
that  it  did  not  appear  that  the  $5,000  were  more  than  it  was  judicious 
and  proper  for  the  trustee  to  keep  on  hand  to  meet  the  charges  on  the 
estate,  and  dismissed  the  petition.1 

§  722  6.  The  Court  therefore  had  not  to  consider  the  question 
whether  the  Act  of  1853  affected  spendthrift  trusts.  They  say, 
however,  that  "the  language  of  the  Act  is  very  comprehensive,  and 
while  it  is  perhaps  to  be  regretted  that  it  is  so  sweeping  in  its  terms 
we  are  constrained  to  adhere  to  the  construction  that  has  heretofore 
been  given  to  it.  ...  It  is  not  essential  that  the  direction  to  accu- 
mulate should  be  expressed.  If  the  estate  is  disposed  of  so  or  in  such 
manner  that  accumulations  clearly  beyond  what  may  be  reasonably 
required  to  fully  and  effectually  carry  out  the  provisions  of  the  trust 
must  necessarily  exist,  it  amounts  to  an  implied  direction  to  accumu- 
late." This  rather  points  in  the  direction  of  disallowing  accumulations 
under  spendthrift  trusts. 

§  722  c.  In  Lutz's  Estate 2  Penrose,  J.,  in  the  Orphans'  Court  of 
Philadelphia,  refused  to  extend  the  doctrine  of  Eberly's  Case  to  the  case 
of  a  direction  to  apply  income  in  paying  off  incumbrances,  and  held  that 
such  direction  was  invalid;  and  this  was  reaffirmed  by  the  same  learned 
judge  when  the  case  was  again  before  the  Court.  Lutz's  Estate.9 

§  722  d.  In  Hibb's  Estate  *  &  testator  gave  property  in  trust  for 

1  Eberly's  Appeal  was  followed          *  18  Phila.  114. 
in  Mitcheson'a  Estate,  5  Pa.  C.  C.          »  27  W.  N.  C.  403;  20  Phila.  89; 

99;  22  W.  N.  C.  46;  and  Spring's  9  Pa.  C.  C.  294. 
Estate,  216  Pa.  529.     See  Levy's          *  143   Pa.    217.     See    Foulke, 

Estate,  1  Pa.  Diet.  R.  217;  Foulke,  Treatise,  §§  646,  664. 
Treatise,  §§  637,  647,  663-670.    Cf. 
Williamson's  Estate,  143  Pa.  160. 


APPENDIX.  555 

his  son  S.,  the  trustee  to  pay  over  to  S.  "whatever  portion  of  it  he 
shall  deem  necessary  for  him  to  have;  the  balance,  if  any,  to  be  in- 
vested by  him  for  his  benefit."  There  was  a  gift  over  on  the  death 
of  S.  The  trustee  had  a  balance  of  income  in  his  hands  of  some  $5,000. 
The  Court  held  that  "in  common  prudence  a  contingent  fund  should 
be  provided  in  anticipation  of  decrease  of  income,  sickness,  and  the 
like,"  and  that  it  could  not  assume  that  the  trustee  had  abused  his 
discretion.  And  a  like  decision  was  made  in  Howett's  Estate,1  in  which 
case  it  was  also  decided  that  such  accumulations  temporarily  made 
went,  when  the  occasion  for  retaining  them  ceased,  to  the  next  of 
kin. 

§  723.  Whether  accumulation  can  be  allowed  during  a  succession 
of  minorities  for  twenty-one  years  after  a  testator's  death,  has  been 
doubted.2 

§  724.  The  Act  expressly  excludes  accumulations  for  charity 
from  its  operation.8  And  directions  to  accumulate  for  a  charity 
are  not  void,  because  individuals  may  incidentally  profit  by  the 
accumulations.4  But  accumulations  will  not  be  saved  from  the 
effect  of  the  Statute  because  they  are,  on  a  certain  contingency, 
to  be  given  to  a  charity.8 

§  725.  The  Act  has  been  held  not  to  affect  lands  out  of  the  State, 
although,  semble,  the  title  was  in  a  Pennsylvania  trustee.'  In  De 
Renne's  Estate  7  a  citizen  of  Georgia  bequeathed  personal  property 
to  a  Pennsylvania  corporation  on  such  trusts  as  would  not  be  al- 
lowed by  the  Pennsylvania  Statute.  The  Orphans'  Court  of  Phila- 
delphia held  that  the  Statute  did  not  apply.  This  ruling  seems 
questionable.  Does  not  the  Statute  forbid  the  doing  of  certain  acts 
in  Pennsylvania  as  against  public  policy?  But  De  Renne's  Case  was 

1  180  Pa.   515.     To    the    same  Rule  against  Perpetuities,  it  is  not 
effect  is  Lafferty's  Estate,  19  Pa.  validated  by  this  exception.    Estate 
C.  C.  127;  20  Pa.  C.  C.  632.  of  Rogers,  18  Phila.  99.    See  Foulke, 

2  Furness    Minors'    Estate,    14  Treatise,  §§  653-656,  695-697. 
W.  N.  C.  391;  16  Phila.  357.     See  «  Lennig's  Estate,  154  Pa.  209. 
Foulke,  Treatise,  §  641.  •  See   De   Renne's    Estate,    12 

1  Cumin  v.   Philadelphia  Trust  W.  N.  C.  94. 

Co.,  15  Phila.  84;  affirmed  in  the          •  Estate  of  Mellon,  41  Leg.  Int. 

Supreme  Court,  sub  nom.  Curran's  54. 

Appeal,  4  Pennyp.  331.    Young  v.  »  12  W.  N.  C.  94.    See  §  263  o, 

Lutheran  Church,  200  Pa.  332.    But  ante. 
if  a  gift  to  a  charity  violates  the 


556 


THE   RULE   AGAINST  PERPETUITIES. 


followed  by  the  Supreme  Court  in  Fowler's  Appeal.1  In  both  cases 
the  cestuis  que  trust  lived  out  of  Pennsylvania. 

§726.  Alabama. — A  Statute  of  this  State2  provides  that  "no 
trust  of  estate  for  the  purpose  of  accumulation  only  can  have  any 
force  or  effect  for  a  longer  term  than  ten  years,  unless  when  for  the 
benefit  of  a  minor  in  being  at  the  date  of  the  conveyance,  or  if  by 
will,  at  the  death  of  the  testator;  in  which  case  the  trust  may  extend 
to  the  termination  of  such  minority."  No  case  appears  to  have  arisen 
under  this  Statute. 

§  726  a.  Illinois.  A  Statute  of  this  State,  St.  1907,  c.  1,  restrains 
accumulations.  Its  provisions  are  given  in  a  note.3 


1  125  Pa.  388.     See  §  262,  ante. 

2  Civil  Code,  1907,  §  3410. 

1  "That  no  person  or  persons 
shall,  after  this  act  goes  into  effect, 
by  any  deed  or  deeds,  will,  codicil 
or  otherwise  howsoever  executed 
after  this  act  goes  into  effect,  settle 
or  dispose  of  any  real  or  personal 
property,  so  and  in  such  manner, 
either  expressly  or  by  implication, 
that  the  rents,  issues,  profits  or 
produce  thereof  shall  be  wholly  or 
partially  accumulated;  for  any 
longer  term  than  the  life  or  lives 
of  any  such  grantor  or  grantors, 
settlor  or  settlors,  or  for  any  longer 
than  the  term  of  twenty-one  years 
from  the  death  of  any  such  grantor, 
settlor,  devisor  or  testator;  or  for 
any  longer  than  during  the  minority 
or  respective  minorities  of  any  per- 
son or  persons  who  shall  be  living, 
or  in  venire  sa  mere  at  the  time  of  the 
death  of  such  grantor,  devisor  or 
testator,  or  for  any  longer  than 
during  the  minority  or  respective 
minorities  only  of  any  person  or 
persons  who,  under  the  uses  or 
trusts  of  the  deed,  will  or  other 
assurances  directing  such  accumula- 
tions, would,  for  the  time  being,  if 
of  full  age,  be  entitled  unto  the 


rents,  issues  and  profits,  or  the  in- 
terest, dividends  or  annual  produce 
so  directed  to  be  accumulated;  and 
in  every  case  where  any  accumula- 
tion shall  be  directed  otherwise 
than  as  aforesaid,  such  direction 
shall  be  null  and  void,  and  the  rents, 
issues,  profits  and  produce  of  such 
property  so  directed  to  be  accu- 
mulated, shall,  so  long  as  the  same 
shall  be  directed  to  be  accumulated 
contrary  to  the  provisions  of  this 
act,  go  to  and  be  received  by  such 
person  or  persons  as  would  have 
been  entitled  thereto  if  such  ac- 
cumulation had  not  been  directed: 
Provided,  that  nothing  in  this  act 
contained  shall  extend  to  any  pro- 
vision for  payment  of  debts  of  any 
grantor,  settlor,  or  devisor,  or 
other  person  or  persons,  or  to  any 
provision  for  raising  portions  for 
any  child  or  children  of  any  per- 
son taking  any  interest  under  any 
such  conveyance,  settlement  or 
devise,  or  to  any  direction  touch- 
ing the  produce  of  timber  or  wood 
upon  any  lands  or  tenements;  but 
that  all  such  provisions  and  direc- 
tions shall  and  may  be  made  and 
given  as  if  this  act  had  not  passed." 


APPENDIX.  557 

§  727.  In  New  York  an  elaborate  system  of  rules  as  to  future 
interests  and  accumulations  has  taken  the  place  of  the  common  law; 
they  are  given  later.1  Some  States  have  copied  the  whole  system.1 
In  Indiana  the  New  York  rules  as  to  accumulation,  and  singularly 
enough  only  in  relation  to  personal  property,  have  been  separately 
adopted.* 


c. 

LEGISLATIVE  CHANGES  IN  THE  UNITED  STATES. 

§  728.  The  Rule  against  Perpetuities  is  judge-made  law.  In  Eng- 
land the  only  Statutes  affecting  it  are  the  Thellusson  Act,4  and  the 
Statutes  44  &  45  Viet.  c.  41,  §  42,  and  55  &  56  Viet.  c.  58.8  The 
Real  Property  Commissioners,  in  their  Third  Report,  recommended 
numerous  changes,  but  none  of  them  have  been  adopted. 

§  729.  The  legislation  in  the  United  States  is  of  three  kinds:  it 
is  either  — 

I.  A  general  provision  that  perpetuities  shall  not  be  allowed. 

II.  A  short  and  simple  statute  declaring  or  modifying  the  law. 

III.  An  elaborate  scheme  to  be  substituted  for  the  common  law. 

§  730.  I.  A  General  Provision  that  Perpetuities  shall  not  be  allowed.  — 
The  Constitutions  of  Arkansas,  Nevada,  North  Carolina,  Tennessee, 
and  Texas,  contain  respectively  the  following  provisions:  —  Arkansas: 
"Perpetuities  and  monopolies  are  contrary  to  the  genius  of  a  republic, 
and  shall  not  be  allowed."6  Nevada:  "No  perpetuities  shall  be  allowed 
except  for  eleemosynary  purposes."  7  North  Carolina:  "Perpetuities 
and  monopolies  are  contrary  to  the  genius  of  a  free  State,  and  ought 
not  to  be  allowed."  8  Tennessee:  "Perpetuities  and  monopolies  are 
contrary  to  the  genius  of  a  free  State,  and  shall  not  be  allowed."  ' 
Texas:  "Perpetuities  and  monopolies  are  contrary  to  the  genius  of 

1  §  747,  post.  Act  and  the  cases  arising  under  it 

1  At  least  as  to  real  estate.  See  have  been  dealt  with  in  App.  B. 
§§  751,  752,  post.  5  See  §§  676  fc,  686,  note,  ante. 

»  3  Burns'  Ind.  Sts.  §  9724.  See  •  Const,  of  1874,  art.  2,  §  19. 

Dyson  v.  Repp,  29  Ind.  482.  »  Const,  of  1864,  art.  15,  §  4. 

*  39  &  40  Geo.  III.  c.  98.  This  «  Const,  of  1876,  art.  1,  §  31. 

•  Const,  of  1870,  art.  1,  §  22. 


558  THE   BULB  AGAINST  PERPETUITIES. 

A  free  government,  and  shall  never  be  allowed."  l  These  provisions 
•seem  to  be  simply  pieces  of  declamation  without  juristic  value,  at 
least  on  any  question  of  remoteness.7 

§  731.  The  twenty-third  section  of  the  Declaration  of  Rights  in 
the  North  Carolina  Constitution  of  1776  was  the  first  place,  appar- 
ently, in  which  this  clause  occurred,  and  it  has  served  as  a  model 
for  the  rest.  It  has  been  said  to  refer  only  to  estates  tail,  and  has 
been  held  not  to  affect  gifts  to  charities.*  And  that  a  gift  to  a  charity 
is  good  notwithstanding  the  clause  in  the  Constitution  has  also  been 
held  in  Tennessee.4 

§  732.  The  Florida  Constitutions  of  1838  8  and  1865 8  contained 
a  provision  identical  with  that  of  North  Carolina;  but  the  framers 
of  the  Constitution  of  1868  had  the  good  sense  to  omit  it.7 

§733.  The  Constitution  of  Vermont,  1793,8  provides  that  "the 
Legislature  shall  regulate  entails  in  such  manner  as  to  prevent  per- 
petuities." This  was  copied  from  the  Pennsylvania  Constitution  of 
1776; 9  but  there  is  no  such  provision  in  the  later  Constitutions  of 
Pennsylvania.  This  clause  appears  to  have  had  no  effect  on  the  law.10 

§  734.  The  statute  provision  in  Maryland  u  seems  more  idle  even 
than  the  constitutional  clauses  above  quoted.  It  reads  thus:  "No 
will,  testament  or  codicil  shall  be  effectual  to  create  any  interest 
or  perpetuity,  or  make  any  limitation,  or  appoint  any  uses  not  now 
permitted  by  the  Constitution  or  laws  of  this  State."  That  is,  an 
illegal  will  shall  be  an  illegal  will.  If  this  were  a  constitutional  pro- 
vision, it  might  be  important  as  tying  up  the  hands  of  the  Legis- 

1  Const,  of  1876,  art.  1,  §  26.  305,  353  et  seq.    In  White  v.  Hale, 

*  But  see  §  773,  post;  Gortario  2  Coldw.  77,  a  provision  that  land 
v.  Cantu,  7  Tex.  35,  46,  47;  Me-  given  to  a  charity  should  never  be 
Hvain  v.  Hockaday,  36  Tex.  Civ.  sold  was  held  to  be  avoided  by  this 
Ap.  1;   Conley  v.  Daughters  of  Re-  clause    in    the    Constitution;    but 
public,   151  S.  W.  Rep.  877   (Tex.  semble  that  apart  from  this  clause 
Civ.  Ap.).     Cf.  McLeod  v.  Dell,  9  it  would  have  been  invalid. 

Fla.  427,  447.  •  Art.  1,  §  24. 

As  to  the  Constitution  of  Cali-  8  Art.  1,  §  23. 

forma,  see  §  752,  post.  7  See  McLeod  v.  Dell,  9  Fla.  427, 

1  Griffin  v.  Graham,   1  Hawks,  447. 

96,  130  et  seq.    State  v .  McGowen,  •  C.  2,  §  36. 

2  Ired.  Eq.  9.    State  v.  Gerard,  Id.  •  §  37. 

210,  221.  to  Giddings  v.  Smith,  15  Vt.  344. 

*  Franklin  v.  Armfield,  2  Sneed,  u  Code  of  1904,  art.  93,  §  315. 


APPENDIX.  559 

lature  from  changing  the  common  law;  but  as  the  Legislature  can 
alter  it  at  any  time,  it  seems  to  be  empty  words. 

§  735.  II.  A  Short  and  Simple  Statute  declaring  or  modifying 
the  Law.  —  In  Georgia,  Iowa,  and  Kentucky,  Statutes  have  been 
passed  which  were  probably  intended  to  be  declaratory  of  the  com- 
mon law.  They  are  as  follows:  — 

Georgia.  —  "Perpetuities.  Limitations  of  estates  may  extend  through 
any  number  of  lives  in  being  at  the  tune  when  the  limitations  com- 
mence, and  twenty-one  years,  and  the  usual  period  of  gestation  added 
thereafter.  A  limitation  beyond  that  period  the  law  terms  a  per- 
petuity, and  forbids  its  creation.  When  an  attempt  is  made  to 
create  a  perpetuity,  the  law  gives  effect  to  the  limitations  not  too  re- 
mote, declaring  the  others  void,  and  thereby  vests  the  fee  in  the 
last  taker  under  the  legal  limitations."  *  What  is  meant  by  the 
words  "limitations  of  estates  may  extend"?  If  they  mean  "estates 
may  extend,"  then  a  life  estate  to  an  unborn  person  is  bad,  and  indeed 
a  fee  simple  is  impossible.  And  if  a  life  estate  to  an  unborn  person  is 
good,  does  such  person  take  a  fee  as  "the  last  taker  under  the  legal 
limitations"  ?  And  again,  is  an  estate  void  which  though  vested  in 
interest  is  not  vested  in  possession  till  beyond  the  required  limits, 
e.  g.  a  so-called  remainder  after  a  long  term  for  years? 

§736.  Iowa.  —  "Every  disposition  of  property  is  void  which 
suspends  the  absolute  power  of  controlling  the  same  for  a  longer 
period  than  during  the  lives  of  persons  then  hi  being,  and  twenty- 
one  years  thereafter." 2  This  seems  based  on  the  erroneous  con- 
ception of  the  Rule  against  Perpetuities,8  that  an  alienable  interest 
is  never  too  remote.4  In  Todhunter  v.  D.  M.  I.  &  M.  R.  Co.6  there 
was  a  lease  of  a  railroad  for  nine  hundred  and  ninety-nine  years,  and 
the  Court  held  that  it  did  not  violate  the  Statute,  on  the  ground 
that  the  lessor  and  lessee  together  might  convey  a  perfect  title;  but 
neither  did  it  violate  the  common-law  Rule  against  Perpetuities.8 
Is  the  statute  provision  a  substitute  for  the  common-law  rule,  or 
to  be  taken  as  an  addition  to  it?  7 

1  Code  of  1910,  §  3678.   Phinizy  •  58  Iowa,  205. 

v.  Wallace,  136  Ga.  520.  •  §  209,  ante. 

1  Code  of  1897,  §  2901.  7  See  Meek  v.  Briggs,  87  Iowa, 

»  See  Chap.  VII.,  ante.  610;  Phillips  v.  Harrow,  93  Iowa, 

4  See  §§  140,  278,  ante;  §§  744,  92;   Jordan  v.   Woodin,   93   Iowa, 

748,  post.  453;  First  Bank  of  Montpelier  t>. 


560  THE  RULE  AGAINST  PERPETUITIES. 

§  737.  Kentucky.  —  "The  absolute  power  of  alienation  shall  not 
be  suspended  by  any  limitation  or  condition  whatever,  for  a  longer 
period  than  during  the  continuance  of  a  life  or  lives  in  being  at  the 
creation  of  the  estate,  and  twenty-one  years  and  ten  months  there- 
after." l  The  remarks  on  the  Iowa  Statute 2  are  applicable  here 
also.  Is  the  period  of  gestation  to  be  allowed  in  addition  to  the 
twenty-one  years  and  ten  months?3 

§  738.  In  some  of  the  other  States  short  statutes  have  been  passed 
modifying  the  common-law  Rule  against  Perpetuities.  These  States 
are  Connecticut,  Ohio,  Pennsylvania,  Alabama,  Indiana,  and  Mis- 
sissippi. 

§739.  Connecticut. —  "No  estate  in  fee  simple,  fee  tail,  or  any 
less  estate,  shall  be  given  by  deed  or  will,  to  any  persons  but  such  as 
are  at  the  time  of  the  delivery  of  such  deed,  or  death  of  the  testator, 
in  being,  or  to  their  immediate  issue  or  descendants."  4  A  gift,  there- 
fore, to  the  heirs  of  a  living  person  was  void,  because  his  heirs  might 
not  be  his  "immediate  issue  or  descendants."  5  So  a  gift  to  those  who 
should  be  the  heirs  of  the  testator  on  a  future  day  was  void.8  The 
Statute  extended  to  personal  property.7 

Since  the  first  edition  the  cases  on  the  Connecticut  Statute  have 

Sioux  City  Terminal  R.  Co.,  69  Fed.  «  §  736,  ante. 

Rep.  441;  Sioux  City  Terminal  R.  3  The     statute    was    obviously 

R.  Co.  v.  Trust  Co.  of  N.  America,  suggested  by  N.  Y.  Rev.  Sts.,  pt. 

82    Fed.    Rep.    124;    Chapman  v.  2,  c.  1,  tit.  2,  §  15. 

Newell,  146  Iowa,  415.  «  Gen.  Sts.  (1888),  §  2952. 

1  Ky.  Sts.   (1903),  §  2360.    See  5  Alfred    ».    Marks,    49    Conn. 

Ernst  v.  Shinkle,  95  Ky.  608;  Hus-  473.     In  this  case,  had  not  Willis 

sey  v.  Sargent,  116  Ky.  53;  Brown  M.  Marks  died  before  the  testator? 

v.  Columbia  Finance  Co.,  123  Ky.  If  so,  the  devise  to  his  heirs  would 

775;  Holt  v.  Deshon,  126  Ky.  310;  seem  to  be  to  those  who  answered 

Kasey  v.  Fidelity  Trust  Co.,   131  that  description  at  the  death  of  the 

Ky.  609;  United  States  Fidelity  Co.  testator,  and  to  be  therefore  good. 

v.  Douglas'  Trustee,   134  Ky.  374;  Buck   v.   Lincoln,    76   Conn.    149. 

Patterson   v.   Patterson,    135   Ky.  2  Jarm.  Wills   (5th  ed.)  931-933, 

339;   Carter's   Trustee   v.   Gettys,  981-992.     Theob.  Wills   (5th  ed.) 

138  Ky.  842;  Saulsbeny  v.  Sauls-  310-313.    Hawkins,  Wills,  99-102. 

berry,    140   Ky.    608;   Lindner   v.  «  Rand  v.  Butler,  48  Conn.  293. 

Ehrich,  147  Ky.  85;  Miller  v.  Miller,  7  Rand  v.  Butler,  48  Conn.  293. 

151  Ky.  563;  Tyler  v.  Fidelity  Trust  Alfred  v.  Marks,  49  Conn.  473. 

Co.,  164   S.   W.  Rep.  939   (Ky.);  See  the  decisions  in  the  follow- 

Johnson  v.  Johnson,  79  S.  W.  Rep.  ing   section   on   substantially   the 

293  (Ky.);  §  121  j,  ante.  same  Statute  in  Ohio. 


APPENDIX. 


561 


been  numerous; l  but  by  the  Conn.  St.  of  1895,  c.  249,  the  statute 
above  quoted  is  repealed,  and  the  common-law  Rule  against  Per- 
petuities is  now  the  law  in  Connecticut.2 

§740.  Ohio. — "No  estate  in  fee  simple,  fee  tail,  or  any  lesser 
estate,  in  lands  or  tenements,  lying  within  this  State,  shall  be  given 
or  granted  by  deed  or  will,  to  any  person  or  persons  but  such 
as  are  in  being,  or  to  the  immediate  issue  or  descendants  of  such  as 
are  in  being  at  the  time  of  making  such  deed  or  will."  3  "Imme- 
diate issue  or  descendants"  are  not  limited  to  "children,"  but  in- 
clude all  descendants  who  would  take  directly  by  descent.  Thus 
if  a  man's  children  are  dead,  his  grandchildren  are  his  "immediate 
issue  or  descendants,"  within  the  meaning  of  the  Statute.4  If  a 
class  will  be  determined  within  the  limits  fixed  by  the  Rule  against 
Perpetuities,  there  seems  to  be  no  reason  why  those  of  the  class 
who  are  the  immediate  descendants  of  persons  living  at  the  testa- 
tor's death  should  not  take  their  shares,  although  some  of  the  class 


1  Wheeler  v.  Fellowes,  52  Conn. 
238.  Tappan's  Appeal,  Id.  412. 
Farnam  v.  Farnam,  53  Conn.  261. 
Andrews  v.  Rice,  Id.  566.  Camp  v. 
Crocker,  54  Conn.  21.  Storr's  Agri- 
cultural School  v.  Whitney,  Id. 
342.  Anthony  v.  Anthony,  55 
Conn.  256.  New  Haven  Young 
Men's  Institute  v.  New  Haven,  60 
Conn.  32.  Leake  v.  Watson,  Id. 
498.  Beers  v.  Narramore,  61  Conn. 
13.  Landers  v.  Dell,  Id.  189.  Tar- 
rant  t;.  Backus,  63  Conn.  277.  Bel- 
field  v.  Booth,  Id.  299.  Morris  v. 
Bolles,  65  Conn.  45.  Ketchum  v. 
Corse,  Id.  85.  Johnson  v.  Edmond, 
Id.  429.  Johnson  v.  Webber,  Id. 
501.  St.  John  v.  Dann,  66  Conn. 
401.  Security  Co.  ».  Snow,  70 
Conn.  288.  Hewit  v.  N.  Y.  N.  H. 
&  H.  R.  R.  Co.,  Id.  637.  Tin- 
gier  v.  Chamberlin,  71  Conn.  466. 
Blakeman  v.  Sears,  74  Conn.  516. 
Lewis  v.  Lewis,  Id.  630.  Buck  v. 
Lincoln,  76  Conn.  149.  White  v. 
Allen,  Id.  185.  Thomas  v.  Castle, 


Id.  447.  Loomer  v.  Loomer,  Id. 
522.  Gerard  v.  Ives,  78  Conn.  485. 
Grant  v.  Stimpson,  79  Conn.  617. 
Lepard  v.  Clapp,  80  Conn.  29.  Har- 
mon v.  Harmon,  Id.  44.  Cody  v. 
Staples,  Id.  82.  Gerard  v.  Beecher, 
Id.  363.  Bartlett  v.  Sears,  81  Conn. 
34.  Wolfe  v.  Hatheway,  Id.  181. 
Heald  v.  Briggs,  83  Conn.  5.  Car- 
penter v.  Perkins,  Id.  11.  Farnam 
v.  Farnam,  Id.  369.  Russell  v. 
Hartley,  Id.  654.  Pease  v.  Cornell, 
84  Conn.  391.  Hartford  Trust  Co. 
v.  Wolcott,  85  Conn.  134.  Sumner 
v.  Westcott,  86  Conn.  217.  Wilde 
v.  Bell,  86  Conn.  610.  See  8  Yale 
L.  J.  82. 

2  Healy  v.  Healy,  70  Conn.  467. 
Duggan  v.  Slocum,  92  Fed.  Rep. 
806. 

1  Rev.  Sts.  (1880),  §  4200. 

4  Turley  v.  Turley,  11  Ohio  St. 
173.  See  McArthur  v.  Scott,  113 
U.  S.  340,  383;  Stevenson  v.  Evans, 
10  Ohio  St.  307;  Brasher  t>.  Marsh, 
15  Ohio  St.  103. 


562  THE   RULE   AGAINST   PERPETUITIES. 

are  not  such  immediate  descendants,  and  are  therefore  forbidden 
by  the  Statute  to  take;  for  the  Statute  has  no  reference  to  time, 
but  only  forbids  gifts  to  certain  persons.1  This  was  so  held  hi  Phillips 
v.  Herron?  in  which  case  it  was  further  said  that  such  a  devise  would 
be  good,  even  if  it  violated  the  Rule  against  Perpetuities.  If  that  is 
so,  the  Statute  is  not  in  addition  to  the  Rule,  but  in  substitution 
for  it.3  The  Statute,  it  will  be  observed,  is  expressly  confined  to 
"lands  or  tenements  lying  within  this  State,"  and  therefore  cannot 
be  extended  to  personalty,  as  the  Connecticut  statute  was.4  The  Ohio 
Statute  does  not  apply  to  gifts  for  charities.5 

§  741.  Pennsylvania.  —  The  Pennsylvania  legislation 8  has  affected 
only  questions  of  accumulation.  It  is  dealt  with  hi  Appendix  B.7 

§742.  Alabama.  — "Extent  of  time  for  which  lands  may  be  con- 
veyed to  certain  persons;  perpetuity  forbidden.  Lands  may  be  conveyed 
to  the  wife  and  children,  or  children  only,  severally,  successively 
and  jointly;  and  to  the  heirs  of  the  body  of  the  survivor,  if  they  come 
of  age,  and  in  default  thereof,  over;  but  conveyances  to  other  than 
the  wife  and  children,  or  children  only,  cannot  extend  beyond  three 
lives  in  being  at  the  date  of  the  conveyance,  and  ten  years  thereafter."  8 
"No  leasehold  estate  can  be  created  for  a  longer  term  than  twenty 
years."  9  Is  a  lease  for  thirty  years  good  for  twenty  years,  or  void 
in  totof 

§743.  Indiana.- — "The  absolute  power  of  aliening  lands  shall 
not  be  suspended  by  any  limitation  or  condition  whatever,  contained 
in  any  grant,  conveyance,  or  devise,  for  a  longer  period  than  during 

1  See   McArthur   v.  Scott,   113  ante.       Dayton     v.     Phillips,     28 

U.  S.  340,  382-384.    In  McArthur  Weekly  Bulletin,  327. 

v.  Scott  it  was  also  conceded  that  B  O'Neal    v.   Caulfield,   8    Ohio 

the   "time  of  making  such  will"  Dec.  248. 

means  the  death  of  the  testator.    P.  '4  Bright.  Purd.  Dig.  (13th  ed.) 

382.    See  §  231,  ante.  (1910)  4036;  1  Bright.  Purd.  Dig. 

*  55  Ohio  St.  478.  (13th  ed.)  (1910)  594. 

*  But  see  Andrews  v.  Rice,  53  7  §§  715-725,  ante. 

Conn.  566.  •  Civil    Code    (1907),    §   3417. 

4  Compare  the  decisions  in  the  See   Lyons   v.    Bradley,    168   Ala. 

preceding  section  on  the  Connecti-  505;  Ashurstw.  Ashurst,  61  So.  Rep. 

cut  Statute,  from  which  the  Ohio  942.     The  following  section  of  the 

Statute  was  copied.  Code  concerns  accumulation.     Its 

See  also  Gibson  v.  Moulton,  2  provisions  are  given  §  726,  ante. 
Disney,   158;  sub  nom.   Gibson  v.  •  Civil  Code  (1907),  §  3418. 

McNeely,  11  Ohio  St.  131,  §  666, 


APPENDIX.  563 

the  existence  of  a  life,  or  any  number  of  lives,  in  being  at  the  crea- 
tion of  the  estate  conveyed,  granted,  devised,  and  therein  specified, 
with  the  exception  that  a  contingent  remainder  in  fee  may  be  cre- 
ated on  a  prior  remainder  in  fee,  to  take  effect,  in  the  event,  that 
the  person  or  persons  to  whom  the  first  remainder  is  limited  shall 
die  under  the  age  of  twenty-one  years,  or  upon  any  other  contin- 
gency by  which  the  estate  of  such  person  or  persons  may  be  de- 
termined before  they  attain  their  full  age."  l  "Where  a  remainder 
for  life  shall  be  limited  on  any  other  than  a  life  or  lives  hi  being  at 
the  creation  of  such  estate,  and  the  life  estates,  subsequent  to  those 
persons  entitled  to  take  life  estates,  according  to  the  provisions  of 
the  last  preceding  section  shall  be  void;  and  upon  the  death  of  those 
persons  entitled  to  take  the  remainder  shall  take  effect,  in  the  same 
manner  as  if  such  void  estates  had  not  been  created."  2 

§  744.  The  former  of  these  two  sections  was  suggested  by  the 
New  York  Revised  Statutes,3  and  is  based  on  the  conception  of  the 
Rule  against  Perpetuities,  which  lies  at  the  root  of  the  New  York 
system;  namely,  that  the  Rule  is  primarily  intended  to  prevent  re- 
straints on  alienation.4  The  latter  section  is  also  taken  from  the 
New  York  Revised  Statutes,5  but  so  clumsily  as  to  make  nonsense 
of  it.  The  statute  does  not  apply  to  charities.6 

§  745.  That  part  of  the  New  York  system  which  affects  accumu- 
lation has  also  been  adopted,  so  far,  however,  only  as  personal  estate 
is  concerned,  in  Indiana.7 

1  2  Burns'  Rev.  Sts.,  §  3998.  106;  Phillips  v.  Heldt,  33  Ind.  Ap. 

2  Id.  3999.  388;  Matlock  v.  Lock,  38  Ind.  Ap. 

3  Pt.  2,  c.  1,  tit.  2,    §§  15,  16.      281;  Hayes  v.  Martz,  173  Ind.  279; 
See  §  747,  note,  post.  Shriver  v.  Montgomery,  103  N.  E. 

«  See  §§  118  a,  140  et  seq.,  278  Rep.  945  (Ind.).  See  two  arti- 
et  seq.,  736,  737,  ante;  §  748,  post.  cles  by  H.  M.  Dowling,  Esq.,  on 
6  Pt.  2,  c.  1,  tit.  2,  §  17.  the  Rule  against  Perpetuities  in 
6  Richmond  v.  Davis,  103  Ind.  Indiana.  1  Ind.  L.  J.  220;  2 
449.  Cf.  Commissioners  of  Rush  Ind.  L.  J.  18.  Mr.  Dowling  sug- 
Co.  v.  Dinwiddie,  139  Ind.  128.  In  gests  that  "and"  where  it  first 
Amos  v.  Amos,  117  Ind.  19,  a  limi-  occurs  in  c.  82,  §  41,  was  a  mis- 
tation  was  held  to  be  vested.  It  is  print  for  "all";  but  "and"  is  al- 
said  that  if  it  were  contingent  it  lowed  to  stand  in  the  latest  re- 
would  be  void  under  this  statute,  visions.  See  also  an  essay  by  M. 
but  the  reason  is  not  obvious.  Cf.  M'D.  Townley,  Esq.,  3  Ind.  L.  J. 
also  Fowler  v.  Duhme,  143  Ind.  7,  67,  100. 
248;  Murphey  v.  Brown,  159  Ind.  7  See  §  727,  ante;  §  747,  note, 


564 


THE   RULE   AGAINST   PERPETUITIES. 


§746.  Mississippi.  —  "Estates  in  fee  tail  are  prohibited;  and 
every  estate  which,  but  for  this  statute,  would  be  an  estate  in  fee 
tail,  shall  be  an  estate  in  fee  simple;  but  any  person  may  make  a 
conveyance  or  a  devise  of  lands  to  a  succession  of  donees  then  living, 
not  exceeding  two,  and  to  the  heirs  of  the  body  of  the  remainder- 
man, and,  in  default  thereof,  to  the  right  heirs  of  the  donor,  in  fee 
simple."  1 

§  747.  III.  An  Elaborate  Scheme  to  be  substituted  for  the  Common 
Law.  —  In  New  York,  by  the  Revised  Statutes  of  1828,  the  rule  of 
the  common  law  on  the  subject  of  remoteness  was  abrogated,  and 
an  elaborate  system  established  in  its  stead.  This  system  consists 
of  three  parts.  (1)  Provisions  as  to  the  remoteness  of  interests  in 
land.2  (2)  Provisions  as  to  the  accumulation  of  rents  and  profits 
from  land.8  (3)  Provisions  as  to  the  remoteness  of  interests  in  per- 
sonal property  and  as  to  the  accumulation  of  income  therefrom.4 
The  provisions  are  given  in  a  note.5 


post.      Dyson    v.   Repp,    29    Ind. 
482. 

1  Code   of    1906,    §  2765.     On 
this    odd    and    confused    Statute 
(which,  however,  is  not  so  odd  as  it 
was  in  an  earlier  form,  Rev.  Code 
of    1871,    §  2286),  see    Jordan    v. 
Roach,  32  Miss.  481,  618  et  seq.; 
Cannon   v.   Barry,    59   Miss.   289, 
300  et  seq.',  Middlesex  Banking  Co. 
v.  Field,  84   Miss.  646;  Thomas  v. 
Thomas,   97   Miss.   697;   Gully  v. 
Neville,  55  So.  Rep.  289;   Henry 
v.  Henderson,   101   Miss.  751,  re- 
versed on  rehearing. 

2  Rev.  Sts.   pt.  2,  c.   1,  tit.  2, 
§§  14-21,  23,  24,  36. 

8  Rev.  Sts.  pt.  2,  c.  1,  tit.  2, 
§§  37-40. 

«  Rev.  Sts.  pt.  2,  c.  4,  tit.  4. 
See  25  Alb.  L.  J.  172. 

5  Rev.  Sts.  pt.  2,  c.  1,  tit.  2. 

"  §  14.  Every  future  estate  shall 
be  void  in  its  creation,  which  shall 
suspend  the  absolute  power  of 
alienation  for  a  longer  period  than 


is  prescribed  in  this  Article.  Such 
power  of  alienation  is  suspended, 
when  there  are  no  persons  in  being, 
by  whom  an  absolute  fee  in  posses- 
sion can  be  conveyed. 

"  §  15.  The  absolute  power  of 
alienation  shall  not  be  suspended 
by  any  limitation  or  condition 
whatever,  for  a  longer  period  than 
during  the  continuance  of  not  more 
than  two  lives  in  being  at  the  crea- 
tion of  the  estate,  except  in  the  single 
case  mentioned  in  the  next  section. 

"  §  16.  A  contingent  remainder 
in  fee  may  be  created  on  a  prior  re- 
mainder in  fee,  to  take  effect  in  the 
event  that  the  persons  to  whom  the 
first  remainder  is  limited,  shall  die 
under  the  age  of  twenty-one  years, 
or  upon  any  other  contingency,  b*y 
which  the  estate  of  such  persons 
may  be  determined  before  they 
attain  their  full  age. 

"  §  17.  Successive  estates  for 
life  shall  not  be  limited,  unless  to 
persons  in  being  at  the  creation 


APPENDIX. 


565 


§  748.   Upon  considering  the  New  York  Statutes  two  remarks 
suggest   themselves.     First.  Those   statutes   evidently   start   with 


thereof;  and  where  a  remainder 
shall  be  limited  on  more  than  two 
successive  estates  for  life,  all  the 
life  estates  subsequent  to  those  of 
the  two  persons  first  entitled 
thereto,  shall  be  void,  and  upon 
the  death  of  those  persons  the 
remainder  shall  take  effect,  in  the 
same  manner  as  if  no  other  life 
estates  had  been  created. 

"  §  18.  No  remainder  shall  be 
created  upon  an  estate  for  the  life 
of  any  other  person  or  persons 
than  the  grantee  or  devisee  of  such 
estate,  unless  such  remainder  be 
in  fee;  nor  shall  a  remainder  be 
created  upon  such  an  estate  in  a 
term  for  years,  unless  it  be  for  the 
whole  residue  of  such  term. 

"  §  19.  When  a  remainder  shall 
be  created  upon  any  such  life 
estate,  and  more  than  two  persons 
shall  be  named,  as  the  persons  dur- 
ing whose  lives  the  life  estate  shall 
continue,  the  remainder  shall  take 
effect  upon  the  death  of  the  two 
persons  first  named,  in  the  same 
manner  as  if  no  other  lives  had  been 
introduced. 

"  §  20.  A  contingent  remainder 
shall  not  be  created  on  a  term  of 
years,  unless  the  nature  of  the  con- 
tingency on  which  it  is  limited,  be 
such  that  the  remainder  must  vest 
in  interest,  during  the  continuance 
of  not  more  than  two  lives  in  being 
at  the  creation  of  such  remainder, 
or  upon  the  termination  thereof. 

"§21.  No  estate  for  life  shall 
be  limited  as  a  remainder  on  a  term 
of  years,  except  to  a  person  in  be- 
ing, at  the  creation  of  such  estate. 


"  §  23.  All  the  provisions  con- 
tained in  this  Article,  relative  to 
future  estates,  shall  be  construed 
to  apply  to  limitations  of  chattels 
real,  as  well  as  of  freehold  estates, 
so  that  the  absolute  ownership  of  a 
term  of  years  shall  not  be  suspended 
for  a  longer  period  than  the  abso- 
lute power  of  alienation  can  be  sus- 
pended, in  respect  to  a  fee. 

"  §  24.  Subject  to  the  rules  es- 
tablished in  the  preceding  sections 
of  this  Article,  a  freehold  estate,  as 
well  as  a  chattel  real,  may  be 
created,  to  commence  at  a  future 
day;  an  estate  for  life  may  be 
created,  in  a  term  of  years,  and  a 
remainder  limited  thereon;  a  re- 
mainder of  a  freehold  or  chattel 
real,  either  contingent  or  vested, 
may  be  created  expectant  on  the 
determination  of  a  term  of  years; 
and  a  fee  may  be  limited  on  a 
fee,  upon  a  contingency,  which, 
if  it  should  occur,  must  happen 
within  the  period  prescribed  in  this 
Article. 

"  §  36.  Dispositions  of  the  rents 
and  profits  of  lands,  to  accrue  and 
be  received  at  any  time  subsequent 
to  the  execution  of  the  instrument 
creating  such  disposition,  shall  be 
governed  by  the  rules  established 
in  this  Article,  in  relation  to  future 
estates  in  lands. 

"  §  37.  An  accumulation  of  rents 
and  profits  of  real  estate,  for  the 
benefit  of  one  or  more  persons,  may 
be  directed  by  any  will  or  deed, 
sufficient  to  pass  real  estate,  as 
follows: 

"1.   If  such  accumulation  be  di- 


566 


THE    RULE   AGAINST   PERPETUITIES. 


the  theory  that  the  immediate  object  of  the  Rule  against  Perpe- 
tuities is  to  limit  restraints  upon  alienation.     This  idea  has  been 


reeled  to  commence  on  the  creation 
of  the  estate,  out  of  which  the  rents 
and  profits  are  to  arise,  it  must  be 
made  for  the  benefit  of  one  or  more 
minors  then  in  being,  and  terminate 
at  the  expiration  of  then-  minority: 

"2.  If  such  accumulation  be  di- 
rected to  commence  at  any  time 
subsequent  to  the  creation  of  the 
estate  out  of  which  the  rents  and 
profits  are  to  arise,  it  shall  com- 
mence within  the  time  in  this  Ar- 
ticle permitted  for  the  vesting  of 
future  estates,  and  during  the 
minority  of  the  persons  for  whose 
benefit  it  is  directed,  and  shall  ter- 
minate at  the  expiration  of  such 
minority. 

"  §  38.  If,  hi  either  of  the  cases 
mentioned  in  the  last  section,  the 
direction  for  such  accumulation 
shall  be  for  a  longer  term  than  dur- 
ing the  minority  of  the  persons  in- 
tended to  be  benefited  thereby,  it 
shall  be  void  as  respects  the  tune 
beyond  such  minority.  And  all 
directions  for  the  accumulation  of 
the  rents  and  profits  of  real  estate, 
except  such  as  are  herein  allowed, 
shall  be  void. 

"§39.  Where  such  rents  and 
profits  are  directed  to  be  accumu- 
lated for  the  benefit  of  infants  en- 
titled to  the  expectant  estate,  and 
such  infants  shall  be  destitute  of 
other  sufficient  means  of  support 
and  education,  the  chancellor,  upon 
the  application  of  their  guardian, 
may  direct  a  suitable  sum  out  of 
such  rents  and  profits  to  be  ap- 
plied to  their  maintenance  and 
education. 

"§40.  When,    in    consequence 


of  a  valid  limitation  of  an  expectant 
estate,  there  shall  be  a  suspense  of 
the  power  of  alienation,  or  of  the 
ownership,  during  the  continuance 
of  which,  the  rents  and  profits  shall 
be  undisposed  of,  and  no  valid  di- 
rection for  then-  accumulation  is 
given,  such  rents  and  profits  shall 
belong  to  the  persons  presumptively 
entitled  to  the  next  eventual 
estate." 

Rev.  Sts.  pt.  2,  c.  4,  tit.  4. 
"Of    Accumulations    of    Personal 
Property,  and  of  Expectant  Es- 
tates in  such  Property. 

"  §  1.  The  absolute  ownership 
of  personal  property  shall  not  be 
suspended  by  any  limitation  or 
condition  whatever,  for  a  longer 
period  than  during  the  continuance 
and  until  the  termination  of  not 
more  than  two  lives  in  being  at  the 
date  of  the  instrument  containing 
such  limitation  or  condition;  or  if 
such  instrument  be  a  will,  for  not 
more  than  two  lives  in  being  at  the 
death  of  the  testator. 

"  §  2.  In  all  other  respects,  limi- 
tations of  future  or  contingent  in- 
terests in  personal  property  shall 
be  subject  to  the  rules  prescribed 
hi  the  first  Chapter  of  this  Act,  in 
relation  to  future  estates  in  lands. 

"  §  3.  An  accumulation  of  the 
interest  money,  the  produce  of 
stock  or  other  income  or  profits 
arising  from  personal  property,  may 
be  directed  by  any  instrument 
sufficient  in  law  to  pass  such  per- 
sonal property  as  follows: 

"1.  If  the  accumulation  be  di- 
rected to  commence  from  the  date 


APPENDIX. 


567 


common,  and  decisions  have  been  based  upon  it;  but  the  difficulties 
and  confusion  arising  therefrom  have  caused  the  idea  to  be  recognized 
as  erroneous,  and  the  decisions  to  be  overruled  or  disapproved.1  This 
erroneous  theory  is  crystallized  in  the  New  York  Statutes. 

§  749.  Secondly.  The  common-law  Rule  of  Perpetuities  grew  out 
of  the  ordinary  usages  of  the  community,  and  is  fitted  to  them.  A 
will  drawn  as  testators  generally  wish  their  wills  drawn  does  not 
violate  the  Rule.  The  limit  of  lives  in  being  is  a  natural  limit.  The 
Rule  strikes  down  only  unusual  provisions.  But  the  limit  of  two  lives, 
fixed  by  the  New  York  Statute,  is  an  arbitrary  limit.  It  cuts  through 
and  defeats  the  most  ordinary  provisions.  To  allow  future  estates, 


of  the  instrument,  or  from  the 
death  of  the  person  executing  the 
same,  such  accumulation  must  be 
directed  to  be  made  for  the  benefit 
of  one  or  more  minors  then  in  being, 
or  in  being  at  such  death,  and  to 
terminate  at  the  expiration  of  their 
minority. 

"2.  If  the  accumulation  be  di- 
rected to  commence  at  any  period 
subsequent  to  the  date  of  the  in- 
strument, or  subsequent  to  the 
death  of  the  person  executing  such 
instrument,  it  must  be  directed  to 
commence  within  the  time  allowed 
in  the  first  section  of  this  title, 
for  the  suspension  of  the  absolute 
ownership  of  personal  property, 
and  at  some  time  during  the  mi- 
nority of  the  persons  for  whose 
benefit  it  is  intended,  and  must 
terminate  at  the  expiration  of  their 
minority. 

"  §  4.  All  directions  for  the  ac- 
cumulation of  the  interest,  income 
or  profit  of  personal  property, 
other  than  such  as  are  herein  al- 
lowed, shall  be  void;  but  a  direction 
for  an  accumulation,  in  either  of 
the  cases  specified  in  the  last  sec- 
tion, for  a  longer  term  than  the 
minority  of  the  persons  intended  to 


be  benefited  thereby,  shall  be  void 
only  as  respects  the  time  beyond 
such  minority. 

"  §  5.  When  any  minor,  for 
whose  benefit  a  valid  accumulation 
of  the  interest  or  income  of  per- 
sonal property  shall  have  been 
directed,  shall  be  destitute  of  other 
sufficient  means  of  support  or  of 
education,  the  chancellor,  upon  the 
application  of  such  minor  or  his 
guardian,  may  cause  a  suitable 
sum  to  be  taken  from  the  monies 
accumulated  or  directed  to  be  ac- 
cumulated, and  to  be  applied  to  the 
support  or  education  of  such 
minor." 

These  Statutes  are  here  given  in 
their  original  form.  They  were  re- 
enacted  with  alterations,  St.  1896, 
c.  547, 3  Birdseye's  General  Statutes 
(1901),  3019,  and  St.  1897,  c.  417,  2 
Birdseye,  2631.  The  original  form 
has  been  here  preserved,  both  be- 
cause it  is  that  under  which  most 
of  the  decisions  have  hitherto  been 
made  and  also  because  it  is  that 
which  has  formed  the  basis  for 
legislation  in  other  States. 

1  See  Chap.  VII.,  and  §§  118  o, 
140  et  aeq.,  736,  737,  744,  ante. 


568  THE  RULE  AGAINST  PERPETUITIES. 

and  yet  to  confine  them  within  bounds  so  purely  arbitrary,  would 
seem  to  be  an  invitation  to  litigation.  And  so  the  event  has  proved. 

§  750.  The  joint  effect  of  these  two  causes  is  that  in  no  civilized 
country  is  the  making  of  a  will  so  delicate  an  operation,  and  so  likely 
to  fail  of  success,  as  in  New  York.  Before  the  passage  of  the  Revised 
Statutes  there  seems  to  have  been  but  one  case  before  the  courts  in 
that  State  in  which  the  remoteness  of  a  limitation  was  called  in  issue, 
and  that  presented  only  a  simple  question  of  construction.1  From  the 
passage  of  the  Revised  Statutes  down  to  the  publication  of  the  first 
edition  of  this  treatise  in  1886  there  had  been  over  one  hundred  and 
seventy  reported  cases  on  questions  of  remoteness.2  During  the 
twenty-eight  years  since  1886,  there  have  been  some  three  hundred 
cases  more,  making  a  total  little  short  of,  if  not  over,  four  hundred 
and  seventy  cases.3  This  enormous  amount  of  litigation  is  perhaps 
as  striking  an  illustration  as  could  be  found  of  the  dangers  attending 
radical  legislation.  Such  legislation  is  indeed  sometimes  necessary, 
but  it  is  not  the  simple  work  those  engaged  in  it  often  suppose.4 

§  751.  In  Michigan,  Wisconsin,  and  Minnesota,  the  first  and 
second  parts  of  the  New  York  system  6  have  been  adopted  with 
scarcely  an  alteration.6  Strangely  enough,  those  States  have  not 

1  Moffat  v.  Strong,  10  Johns.  12.      Law  Rev.  520;   10  Columbia  Law 
The  case  of  Thomson  v.  Livingston,      Rev.  495. 

4  Sandf.  S.  C.  539,  was  decided  in  3  See  §  609,  ante. 

1851,  but  arose  on  a  will  made  in  4  In  1  Columbia  Law  Rev.  224 

1825.    It  was,  perhaps,  not  within  will  be  found  an  able  article  by 

the   Revised   Statutes,   but   under  George  F.  Canfield,  Esq.,  on  the 

their  influence  seems  to  have  been  "New  York  Revised  Statutes  and 

decided  wrongly.    See  §  241,  ante.  the    Rule    against    Perpetuities." 

2  The  names  of  these  cases  were  Cf.  1  Tiffany,  Real  Prop.  §  160. 
given  in  the  first  edition.     They  8  See  §  747,  ante. 

are  now  omitted;  there  seems  to  be  6  3  Mich.  Comp.  Laws  (1897), 
little  of  profit  in  a  bare  unclassified  §§  8796-8803,  8805,  8806,  8818- 
list.  Besides,  the  New  York  stat-  8822.  1  Wis.  Sts.  (1898),  §§  2038- 
utes  are  fully  treated  in  Mr.  Chap-  2045,  2047,  2048,  2060-2064.  In 
lin's  Suspension  of  the  Power  of  Wisconsin  alienation  may  be  sus- 
Alienation,  1891,  and  Mr.  Bolles's  pended  for  two  lives  and  twenty- 
Law  of  the  Suspension  of  the  Power  one  years  thereafter,  §  2039.  Minn, 
of  Alienation  in  New  York,  1891.  Revised  Laws,  §§  3203-3215,  3319. 
Cf.  also  18  Am.  &  Eng.  Encycl.  of  Toms  v.  Williams,  41  Mich.  552. 
Law  (1st  ed.)  373-380;  30  Cyc.  Methodist  Church  of  Newark  v. 
Law  &  P.  1501;  1  Perry  Trusts  Clark,  Id.  730.  Wilson  v.  O'Dell, 
(6th  ed.),  §§  391,  398;  22  Harv.  58  Mich.  533.  Palms  v.  Palms,  68 


APPENDIX. 


569 


adopted  the  provisions  of  the  third  part  of  the  New  York  system, 
that  which  relates  to  personal  property.1  But  the  Supreme  Court 
of  Wisconsin  has  held  that  the  statute  has  abrogated  the  common- 
law  Rule  against  Perpetuities  so  far  as  personal  property  is  concerned, 
and  therefore  there  is  absolutely  no  restraint  on  the  creation  of  future 
interests  in  personalty.2  The  Indiana  Statutes  are  partly  taken  from 
the  New  York  Statutes.3 

§  752.  California  has  borrowed  largely  from  the  New  York  Stat- 
utes; it  has  not,  however,  restrained  the  time  for  creating  future 
estates  to  two  existing  lives.4  The  Constitution  of  California 


Mich.  355.  Ford  v.  Ford,  80  Mich. 
42.  Farrand  v.  Petit,  84  Mich. 
671.  Dean  v.  Mumford,  102  Mich. 
510.  Trufant  v.  Nunneley,  106 
Mich.  554.  Defreese  t;.  Lake,  109 
Mich.  415.  Mullreed  v.  Clark,  110 
Mich.  229.  Petit  v.  Flint,  &c.  R.  R. 
Co.,  114  Mich.  362.  State  v.  Holmes, 
115  Mich.  456.  Downing  v.  Birney, 
117  Mich.  675.  Torpy  v.  Betts, 
123  Mich.  239.  FitzGerald  v.  Big 
Rapids,  Id.  281.  Niles  v.  Mason, 
126  Mich.  482.  Casgrain  v.  Ham- 
mond, 134  Mich.  419.  Van  Driele 
v.  Kotvis,  135  Mich.  181.  Cole 
v.  Lee,  143  Mich.  267.  Foster  v. 
Stevens,  146  Mich.  131.  Hull  v. 
Osborn,  151  Mich.  8.  Mclnerny 
v.  Haase,  163  Mich.  364.  Louns- 
bury  v.  Trustees  of  Burial  Associa- 
tion, 170  Mich.  645  (cf.  10  Mich. 
Law  Rev.  31,  36).  Van  Callow  v. 
Brant,  168  Mich.  642.  Dodge  v. 
Williams,  46  Wis.  70.  De  Wolf 
v.  Lawson,  61  Wis.  469.  Scott  v. 
West,  63  Wis.  529.  Webster  p. 
Morris,  66  Wis.  366.  Ford  v.  Ford, 
70  Wis.  19;  72  Wis.  621.  Fadness 
v.  Braunborg,  73  Wis.  257.  Saxton 
v .  Webber,  83  Wis.  617.  Hughes  v. 
Hughes,  91  Wis.  138.  Beurhaus  v. 
Cole,  94  Wis.  617.  Tyson  v.  Tyson, 
96  Wis.  59.  Harrington  v.  Pier, 


105  Wis.  485.  Webber  v.  Webber, 
108  Wis.  626.  Will  of  Kopmeier, 
113  Wis.  233.  Holmes  v.  Walter, 
118  Wis.  409.  Adelman's  Will, 
138  Wis.  120.  Harrington's  Will, 

142  Wis.  447.     Kavanaugh's  Will, 

143  Wis.  90.    Eggleston  v.  Swartz, 
145  Wis.   106.     Stark's  Will,   149 
Wis.  631.      Simpson   v.    Cook,    24 
Minn.    180.     Atwater   v.   Russell, 
49  Minn.  22,  57.     In  re  Tower's 
Estate,  Id.  371.     Lane  v.  Eaton, 
69  Minn.  141.    Owatonna  v.  Rose- 
brock,    88    Minn.    318.      Rong   v. 
Haller,  109  Minn.   191.     Buck  v. 
Walker,    115   Minn.   239.     Young 
Men's  Christ.  Assoc.  v.  Horn,  120 
Minn.  404. 

1  Toms  v.   Williams,   41   Mich. 
552,  562.     Dodge  v.  Williams,  46 
Wis.  70,  95  et  seq.   Penny  v.  Croul, 
76  Mich.  471.    De  Wolf  v.  Lawson, 
61  Wis.  469,  474. 

2  Becker  v.  Chester,  115  Wis.  90. 
Danforth  v.  Oshkosh,  119  Wis.  262. 
See  §  265,  ante. 

«  See  §§  743-745,  ante. 

*  Civil  Code,  §§  715-716,  722- 
725,  770-777,  1313.  Goldtree  v. 
Thompson,  79  Cal.  613.  Whitney 
v.  Dodge,  105  Cal.  192.  In  re 
Walkerly,  108  Cal.  627.  Estate  of 
Hendy,  118  Cal.  656.  Estate  of 


570 


THE   RULE  AGAINST  PERPETUITIES. 


(1849) l  provides  that  "no  perpetuities  shall  be  allowed  except  for 
eleemosynary  purposes."  2  North  Dakota  and  South  Dakota  have 
adopted  the  California  Statutes  on  these  subjects,  bodily,3  and 
Idaho  and  Montana  have  taken  some  provisions  from  the  same 


source.'1 


D. 

FOREIGN  LAW. 
I.  SCOTCH  LAW. 

§  753.  Land.  —  The  owner  of  land  may  tailzie  (i.  e.  entail)  it  by 
a  simple  destination.  "That  sort  [of  entail]  is  called  a  simple  des- 
tination where  the  persons  called  to  the  succession  are  in  the  deed 
substituted  one  after  another,  but  without  any  restraint  laid  upon 
the  members  or  heirs  of  entail  as  they  come  to  succeed,  that  they 
shall  not  alter  the  course  of  succession  settled  by  the  maker.  They 
have  therefore  this  only  legal  effect,  that  the  order  of  succession 
contained  in  the  entail  is  to  be  observed  so  long  as  no  alteration 
is  made  by  any  of  the  heirs  succeeding  to  the  lands.  But  as  these 


Cavarly,  119  Cal.  406.  Atlantic 
Trust  Co.  v,  Woodbridge  Canal 
Co.,  86  Fed.  Rep.  975.  Crew  v. 
Pratt,  119  Cal.  139.  Sacramento 
Bank  t;.  Alcorn,  121  Cal.  379. 
Camp  v.  Land,  122  Cal.  167. 
Toland  v.  Toland,  123  Cal.  140. 
Estate  of  Steele,  124  Cal.  533. 
Staacke  v.  Bell,  125  Cal.  309. 
Estate  of  Fair,  132  Cal.  523.  Nel- 
lis  v.  Rickard,  133  Cal.  617.  Blake- 
man  v.  Miller,  136  Cal.  138.  Estate 
of  Pforr,  144  Cal.  121.  Estate 
of  Lux,  149  Cal.  200.  Estate  of 
Campbell,  Id.  712.  Estate  of 
Haines,  150  Cal.  640.  Estate 
of  Fay,  5  Cal.  Ap.  188.  Campbell 
v.  Karvannanakoa,  152  Cal.  201. 
Estate  of  Heberle,  155  Cal.  723. 
Hornung  v.  Sedgwick,  164  Cal.  629. 
Estate  of  Budd,  166  Cal.  286.  Es- 


tate of  Coleman,  138  Pac.  Rep. 
992  (Cal.). 

1  Art.  11,  §  16. 

*  See  Estate  of  Hinckley,  58 
Cal.  457,  470  et  seq.;  Estate  of  Rob- 
inson, 63  Cal.  620;  People  v.  Cogs- 
well, 113  Cal.  129;  Estate  of  Gay, 
138  Cal.  552;  Estate  of  Merchant, 
143  Cal.  537;  §§  730,  731,  ante. 

»  N.  Dak.  Civ.  Code  (1905), 
§§  4744-4746,  4771,  4772,  4872, 
4873.  Penfield  v.  Tower,  1  N. 
Dak.  216.  Hagen  v.  Sacrison,  19 
N.  Dak  160.  S.  Dak.  Civ.  Code, 
§§  224-226,  251,  252,  352-354. 

4  Idaho,  Civ.  Code  (1901), 
55  2364,  2367,  2369.  Montana, 
Civ.  Code  (1907),  5§  4463-4465, 
4492. 

Cf.  Dist.  of  Col.  Code,  §  1023. 


APPENDIX.  571 

heirs  are  laid  under  no  restraint  in  the  exercise  of  their  property,  they 
are  unlimited  fiars,  and  consequently  may  either  bring  back  the  suc- 
cession to  the  heirs-at-law  or  carry  it  to  any  other  order  of  heirs  at 
pleasure,  in  the  same  manner  that  the  maker  himself  could  have 
done."1 

§  754.  Deeds  of  entail  sometimes  contain  prohibitory,  irritant, 
and  resolutive  clauses.  Prohibitory  clauses  forbid  the  doing  of  cer- 
tain acts  by  the  successive  owners  of  the  estate,  such  as  alienation 
or  changing  the  order  of  succession.  Irritant  clauses  avoid  the  acts 
prohibited.  By  resolutive  clauses  the  interests  of  owners  doing 
the  prohibited  acts  are  forfeited.  It  was  questioned  whether  at 
common  law  such  clauses  were  valid; 2  but  by  St.  1685,  c.  22,  the 
Parliament  "statutes  and  declares  that  it  shall  be  lawful  to  his 
Majesty's  subjects  to  tailzies  their  lands  and  estates,  and  to  substi- 
tute heirs  in  their  tailzies,  with  such  provisions  and  conditions  as 
they  shall  think  fit,  and  to  effect  the  said  tailzies  with  irritant  and 
resolutive  clauses,  whereby  it  shall  not  be  lawful  to  the  heirs  of  tailzie 
to  sell,  annailzie,  or  dispone  the  said  lands,  or  any  part  thereof, 
or  contract  debt,  or  do  any  other  deed  whereby  the  samen  may  be 
apprized,  adjudged,  or  evicted  from  the  other  substitute  in  the  tailzie, 
or  the  succession  frustrate  or  interrupted,  declaring  all  such  deeds 
to  be  in  themselves  null  and  void."  But  to  have  this  effect  the  deeds 
had  to  contain  irritant  and  resolutive  clauses,  and  had  to  be  pro- 
duced in  court  and  recorded. 

§  755.  Life  rents,  corresponding  to  estates  for  life  in  the  English 
law,  and  annuities  charged  on  land  could  be  granted  only  to  speci- 
fied persons;  whether  they  could  be  granted  to  such  persons  before 
their  birth,  and  if  so  within  what  limits,  does  not  seem  entirely  clear.* 
No  other  kind  of  future  interest  in  land  appears  to  be  known  to  the 
Scotch  law,  save  that  some  conditions  subsequent  are  valid  in  feudal 
grants.4 

§  756.  By  St.  11  &  12  Viet.  (1848),  c.  36,  owners  of  entailed  estates 

1  2  Ersk.  Inst.,  book  3,  tit.  8,  v.  Wright,  8  Dunlop,  C.  of  Seas. 

§  22  (Nicolson's  ed.  1871),  p.  910.  863.    Strathmore  v.  Strathmore,  5 

1  2  Ersk.  Inst.,  book  3,   tit.  8,  Wils.  &  Sh.  170,  180,  note,  194-198. 

§  25,  pp.  912,  913.  McNair  v.  McNair,  Id.  187,  note; 

1  1  M'Laren,  Wills  and  Succes-  19  Mor.  Diet.  16210. 
sion  (3d  ed.),  §  561.     Bell's  Prin-  «  Bell's     Principles    (9th    ed.), 

ciples  (9th  ed.),   §1716.     Erekine  {861. 


572  THE   RULE   AGAINST   PERPETUITIES. 

in  Scotland  are  empowered  to  disentail,  although  the  estates  are  held 
in  trust  for  them;  and  by  §  48  of  the  Statute  it  is  enacted  that  "it 
shall  be  competent  to  grant  an  estate  in  Scotland  limited  to  a  liferent 
interest  in  favour  only  of  a  party  in  life  at  the  date  of  such  grant."  1 

§  757.  Movables,  —  Substitutions  in  movables  (corresponding  to 
executory  limitations  in  the  English  law),  if  the  movables  are  not 
placed  in  trust,  are  defeasible  by  the  owner  for  the  time  being.2  Mov- 
ables might,  however,  be  vested  in  trustees,  to  be  enjoyed  by  an 
indefinite  series  of  persons  for  life;  nor  does  there  seem  to  have  been 
any  limit  on  the  time  during  which  this  might  last.3  "  In  Scotland 
the  law,  instead  of  discouraging  perpetuities,  gives  them  all  manner 
of  encouragement,  and  instead  of  confining  the  time  to  the  lives  in 
being  and  twenty-one  years,  with  the  time  of  gestation  beyond,  per- 
mits you,  in  every  case,  to  tie  up  property  for  ever  and  ever."  4 

§  758.  This  is  now  altered  by  St.  31  &  32  Viet.  (1868),  c.  84,  §  17, 
which  provides  that  "from  and  after  the  passing  of  this  Act,  it 
shall  be  competent  to  constitute  or  reserve,  by  means  of  a  trust  or 
otherwise,  a  life  rent  interest  in  moveable  and  personal  estate  in 
Scotland  in  favour  only  of  a  party  in  life  at  the  date  of  the  deed  con- 
stituting or  reserving  such  life  rent." 

§  758  a.  A  conveyance  of  property  could  be  made  on  condition 
precedent,  or  made  to  take  effect  at  a  future  day,  and  as  a  conveyance 
could  be  to  an  uncertain  person,  there  would  seem  to  have  been 
no  obstacle  to  a  conveyance  to  an  unborn  person. 

§  759.  Accumulation.  —  The  Scotch  common  law  put  no  limit 
to  the  time  during  which  accumulation  might  continue,5  but  it  has 
been  intimated  that  accumulation  might  be  directed  "to  such  an 
excess  as  would  permit  a  court  to  interfere;  but  the  limit  which  might 
justify  that  interference  was  difficult  to  lay  down."  6  In  the  case  of 

1  The       statutes       concerning  16210.    1  M'Laren,  Wills  and  Sue- 
Scotch    entails  are    collected    and  cession  (3d  ed.),  §  564. 
annotated    in    Rankine's    Law    of  4  Per  Lord    Brougham,    C.,   in 
Land  Ownership    in  Scotland  (3d  Strathmore  v.  Strathmore,  5  Wils. 
ed.)  935-1045.     See  Lewis,  Perp.  &  Sh.  170,  193. 

c.  34.  5  Strathmore    v.  Strathmore,    8 

2  M'Dowall  v.  M'Gffl,  9  Dun-      Sh.  530;  5  Wils.  &  Sh.   170.     1 
lop,  C.  of  Sess.  1284.  M'Laren,     Wills    and     Succession 

»  Suttie   v.  Suttie,   18   Sc.  Jur.      (3d  ed.),  §§  566,  567. 
442.     McNair  v.  McNair,  5  Wils.  •  8  Sh.  538. 

&   Sh.    187,   note;   19   Mor.   Diet. 


APPENDIX.  573 

Strathmore  v.  Strathmore  directions  that  rents  should  be  accumulated 
for  thirty  years  were  held  valid. 

§  760.  The  Thellusson  Act l  extends  to  Scotland,2  but  the  third 
section  provides:  "That  nothing  in  this  Act  contained  shall  extend 
to  any  disposition  respecting  heritable  property  within  that  part  of 
Great  Britain  called  Scotland."  3  The  St.  of  11  &  12  Viet.  (1848), 
c.  36,  §  41,  however,  repeals  the  third  section  of  the  Thellusson  Act, 
above  quoted,  and  declares  that  the  Act  "shall  in  future  apply  to 
heritable  property  in  Scotland."  4  It  has  been  held  that  this  §  41 
does  not  render  the  Thellusson  Act  applicable  to  accumulations  of 
the  income  of  real  estate  made  after  1848,  under  the  provisions  of 
a  deed  going  into  operation  before  that  date.5 

II.   ROMAN  LAW. 

§  761.  Usufructs  might  (by  will  at  least)  be  created  on  condition 
precedent  or  to  begin  at  a  future  time,  ex  certo  tempore.6  It  is  said  in 
the  Digest  that  a  usufruct  may  be  granted  to  a  man  and  his  heirs,7 
and  that  the  hen's  take  a  distinct  usufruct,  "licet  diversi  sint  fnictus."  8 
John  Voet 9  says  that  a  usufruct  so  granted  expires  with  the  heir,  and 
does  not  pass  to  the  heir  of  the  heir.  "Tametsi  autem  heredis  appella- 
tione  etiam  heredum  heredes  in  infinitum  vidgo  intelliguntur,  attamen 
hie  primi  tantwn  heredes  censeri  debent  comprehensi,  ne  alioquin  inutilis 
proprietario  esset  proprietor,  usufructu  in  perpetuum  recedente;"  and 
he  relies  on  a  Constitution  of  Justinian,  in  which  it  is  declared  that  if 
a  legacy  is  burdened  with  a  usufruct  hi  favor  of  the  testator's  heir, 

1  39   &   40   Geo.    III.    (1800),  «  Cf.  Moon  v.  Moon,  2   Rettie, 

c.  98;  §  686,  note,  ante.  C.  of  Sess.  201. 

1  The  Scotch  cases  arising  under  6  Keith  v .  Keith,  19  Dunlop,  C. 

its  provisions  are  cited  App.  B,  ante,  of  Sess.  1040.     McLarty  v.  McLav- 

3  On  what  is  a  "disposition  re-  erty,  2  Macph.  849. 

specting   heritable   property,"    see  8  D.  7,  1,  4.    D.  7,  1,  34.    D.  7, 

Ogilvie  v.  Kirk  Session  of  Dundee,  8  1,  54.    D.  7,  3,  1.    D.  10,  2,  16,  2. 

Dunlop,  C.  of  Sess.  1229,  §  714,  ante.  D.  36,  2,  2.    D.  36,  2,  5,  §  1.    Vat. 

On  the  conflict  between  the  Eng-  Frag.  48-50.    1  Demangeat,  Coura 

lish  and  Scotch  law,  see  Fordyce  v.  de  Dr.  Rom.  510,  511. 

Bridges,   2  Phil.   497,   515,   §  264,  '  D.  7,  4,  5,  pr. 

ante;   Macphereon   v.   Stewart,    28  •  D.  45,  1,  38,  §  12. 

L.  J.  Ch.  177,  32  L.  T.  143,  §§  259,  •  Ad.  D.  7,  4,  1. 
note,  264,  note,  ante. 


574  THE   RULE  AGAINST  PERPETUITIES. 

this  usufruct  shall  come  to  an  end  at  the  death  of  the  heir,  and  not 
pass  to  his  heir.1  But,  as  Windscheid  remarks,2  in  this  case  it  was 
only  just  that  the  reservation  should  be  construed  thus  strictly, 
in  order  that  the  legacy  might  have  some  effect,  and  that  the  Con- 
stitution cannot  be  considered  as  prohibiting  the  devise  of  a  usu- 
fruct to  a  man  and  his  heirs.  Windscheid  adds  that  though  to  allow 
a  usufruct  to  go  to  heirs  was  in  contradiction  to  the  conception  of 
a  usufruct  as  a  personal  right,  and  to  call  the  heir's  interest  a  new 
usufruct  was  merely  a  formal  reconcilement  with  the  original  doctrine, 
yet  that  this  step  was  a  necessary  consequence  of  the  other  personal 
servitudes,  the  emphyteusis  and  the  superficies,  having  become  heri- 
table.3 In  the  case  of  annuities  given  by  will  to  a  man  and  his  heirs, 
Justinian  enacted  "eorum  exactionem  omnibus  heredibus  et  heredum 
heredibus  conservari  pro  voluntate  testatoris;"  4  it  does  not,  however,  ap- 
pear but  that  such  annuity  might  be  alienated  or  surrendered  by  the 
person  entitled  to  it  for  the  time  being. 

§  762.  Independently  of  fideicommissa,  the  only  future  substitu- 
tion allowed  (substitutio  pupillaris)  was  that  a  paterfamilias  might,  in 
his  will,  name  the  heir  to  his  child  in  case  the  child  should  die  before 
the  age  of  puberty.5  But  by  means  of  fideicommissa  future  substitu- 
tions were  made  general.6 

1  C.  3,  33,  14.  §  1;  and  Rosin  in  32  Ihering,  Jahrb. 

2  1  Pand.  §  215,  note  7.  fiir  Dog.  323,  391  et  seq.     In  the 

3  See    also  1  Dernburg,  Pand.,  159th  Novel,  Justinian  decreed  in 
§  246.     But  cf .  Pfersche,  8  Griin-  the  case  of  a  particular  will   (set 
hut's  Zeitschr.  526.  forth  in  the  Novel)  that  property 

*  C.  6,  37,  22.  which  the  testator  had   provided 
s  I.  2,    16,   pr.     Legacies,  how-  should  remain  in  his  family  for- 
ever, might  be  on  condition  prece-  ever,  and  which  had,  in  fact,  passed 
dent.      And    an    insane    child    or  by  substitution  through  four  hands 
grandchild  in  whose  place  there  had  and  generations,  was  freely  alien- 
been  a  substitutio  exemplaris  took  able;  but  there  has  been  much  ques- 
the    property    on    recovering    its  tion  whether  it  was  intended  by 
reason.     C.  6,  26,  9.  this  Novel  to  lay  down  any  gen- 

•  See  examples  from  the  Digest  era!  rule,  and  if  so,  what  that  gen- 
collected  in  Hunter,  Rom.  Law  (3d  era!  rule  was.    Cujac.  Novell.  Ex- 
ed.),  823.     On  the  fideicommissum  pos.  ad  loc.    Domat,  p.  2,  1;  5,  t.  3, 
famUvz   relictum,  see    the  Donatio  §  3819.     3  Windscheid,   Lehrbuch 
Flavii  Syntrophi  as  given  in  Bruns,  des  Pandektenr.    §  637.     3  Brinz. 
Fontes  Jur.  Rom.  Ant.   (5th  ed.)  Pand.  §  423,  note  27.     3  Dernburg, 
253;    Lewis,    Familienfideicommis.  Pand.  §  114,  note  9.    Lewis,  Famili- 


APPENDIX. 


575 


III.  FRENCH  LAW. 

§  763.  To  take  by  gift  or  legacy,  the  donee  or  legatee  must  be 
begotten  at  the  time  of  the  gift  or  of  the  testator's  death.1  Prop- 
erty may  be  conveyed  inter  vivos  or  by  will  on  condition  precedent,2 
and  so  may  a  usufruct.3  And  the  right  to  a  legacy  on  condition 
may,  when  the  condition  is  certain  to  be  fulfilled,4  pass  to  the  heir 
of  the  legatee,  but  not  when  the  fulfilment  of  the  condition  is  un- 
certain.5 The  right  of  return  (droit  de  retour)  of  gifts  upon  the  death 
of  the  donee,  or  of  the  donee  and  his  descendants,  is  valid  in  favor  of 
the  donor  alone,  but  not  of  the  donor  and  his  heirs.6 

§  764.  A  usufruct  comes  to  an  end  with  the  death  of  the  usu- 
fructuary; 7  but  a  usufruct  may  be  granted  to  two  or  more  persons 
in  succession.8  A  usufruct  cannot  be  given  or  bequeathed  to  un- 
begotten  heirs; 9  but  it  may  be  acquired  for  value  (&dbli  d  litre  one- 
reux) for  unbegotten  heirs;  it  seems,  however,  that  it  must  expire 
with  the  immediate  heirs,  and  not  pass  to  their  heirs.10 


enfideicommis.     §    24,    pp.  439   et 
seq. 

For  the  German  Familienfi- 
deicommissen,  see  1  Holzendorf., 
Rechtslex.,  sub  voce;  Lewis,  Das 
Recht  des  Familienfideicommisses. 

1  Cod.  Civ.  §  906.     But   by  a 
marriage   contract   a   person   may 
dispose  of  the  whole  or  part  of  such 
property  as  he  may  leave  at  his 
death,  for  the  benefit  of  the  hus- 
band and  wife,  or  of  the  issue  of  the 
marriage  in  case  the  donor  survives 
the  husband  or  wife.     Cod.  Civ. 
§§  1082,  1084.    As  to  substitutions 
when  the  person  substituted  is  un- 
born, see  §  764,  post. 

2  See  13  Journ.  Comp.  Leg.  N.  s., 
Part  1,  52. 

8  Cod.  Civ.  §  580. 

4  E.  g.  when  a  legacy  to  A.  is  to 
be  paid  upon  the  death  of  B.  See 
§  201,  note,  ante. 

8  Cod.  Civ.  §§  1040,  1041. 

8  Cod.  Civ.  §  951.   8  Duranton, 


Cours  de  Dr.  Fr.  §  487.  4  Zacharia, 
Handb.  d.  franz.  Civilr.  (8th  ed.), 
§  710.  8  Aubry-Rau.,  Cours  de  Dr. 
Civ.  Fr.  (4th  ed.),  §  740. 

7  Cod.  Civ.  §  617.    So  with  usus 
and  habitatio.     Cod.  Civ.  §  625. 

8  4  Duranton,  §  491.    Lebon  v. 
P&mvaire,  12  Dalloz,  Jur.  du  Roy- 
aume,  190,  note.  1.    2  Aubry-Rau, 
§228. 

»  Cod.  Civ.  §  906.  See  §  763, 
ante. 

10  See  §  761,  ante;  3  Toullier, 
Droit  Civ.  Fr.  §  447;  4  Duranton, 
§  491.  Duranton,  loc  cit.,  says  that 
by  express  stipulation  a  usufruct 
may  be  acquired  a  titre  onereux  for 
the  heir's  heir,  sed  quaere.  The 
prevailing  opinion  now  seems  to  be, 
that  a  usufruct  cannot  be  etabli  a 
titre  onereux  for  unbegotten  heirs. 
42  Dalloz,  Rep.  de  Leg.  Usufruct, 
§  103.  10  Demolombe,  Code  Nap., 
§248.  6  Laurent,  Dr.  Civ.  Fr., 
§354.  2  Aubry-Rau,  §  228,  note 


576  THE   BULB   AGAINST  PERPETUITIES. 

§  765.  The  only  way  by  which,  in  France,  property  can  be  given 
to  an  unborn  person  is  the  following  substitution,  which  is  the  sole 
substitution  allowed  by  the  French  law:  By  gift  inter  vivos  or  by 
will  a  donor  or  testator  may  give  property  to  his  child,  or  if  he  has 
no  child,  to  his  brother  or  sister,  with  a  provision  that,  on  the  death 
of  the  donee  or  legatee,  the  property  shall  go  absolutely  and  without 
condition  to  the  children  of  such  donee  or  legatee.1  If  a  gift  is  made 
with  an  illegal  substitution,  not  only  the  substitution  but  the  original 
gift  is  invalid.2 

IV.  LAW  OF  LOUISIANA. 

§  766.  To  take  by  gift  or  legacy,  the  donee  or  legatee  must  be 
begotten  at  the  time  of  the  gift  or  of  the  testator's  death.8  Prop- 
erty may  be  conveyed  inter  vivos  or  by  will  on  condition  precedent, 
and  so  may  a  usufruct.4  And  the  right  to  a  legacy  on  condition 
may,  when  the  condition  is  certain  to  be  fulfilled,  pass  to  the  heir 
of  the  legatee,  but  not  when  the  fulfilment  of  the  condition  is  un- 
certain.6 The  right  of  return  of  gifts  upon  the  death  of  the  donee, 
or  of  the  donee  and  his  descendants,  is  valid  in  favor  of  the  donor 
alone.8 

3.     On  emphyteusisis,  see  Law  of  5  Toullier,  §§  43-50;  cf.  3  Planiol, 

June   25,    1902;    1    Planiol,    Droit  Droit  Civil   (6th  ed.),    §§3290  et 

Civil  (6th  ed.),  §§  2989  et  seq.  seq.;  or  as  a  gift  on  condition,  Id. 

1  Cod.  Civ.,  §§  896,    897,  1048  §  3295;  Lambert,    L' Exhere"dation, 

et  seq.    The  law  of  May  17,  1826,  §§  771-882;  Sirey   (1892),  Part  2, 

extending  the  right  of  substitution  89;  but  where   the  gift  over  is  to 

to  the  second  degree  was  repealed  an  unborn  person  this  cannot  be 

by  the  law  of  May  7,  1849;  and  done,  §  763,  ante, 
majorats,  by  which,  in  accordance  Cf.  article  by   Mr.  H.  Sheldon 

with  the  Code  Civil,  §  896,  prop-  Amos,  Perpetuities  in  French  Law, 

erty   might   be   entailed   with   an  13  Journ.  Comp.  Leg.  N.  s.,  Part 

hereditary  title,  were  abolished  by  1,  47. 
the  law  of  May  12,  1835.  »  La.    Rev.    Code    (1870),    art. 

1  Cod.  Civ.  §  896.     5  Toullier,  1482.     Sevier  v.  Douglas,   44  La. 

Droit    Civ.   FT.,    §§   12-14.      The  An.  605. 
Courts  will  try  to  construe  a  gift  *  La.  Rev.  Code,  art.  542. 

to  one  person  with  a  gift  over  to  5  La.  Rev.  Code,  art.  1698,  1699. 

another  as  a  gift  of  the  usufruct  See  §  201,  note,  ante. 
and  a  gift  of  the  naked  property,  *  La.  Rev.  Code,  art.  1534.    See 

which  is  allowed,  Cod.  Civ.,  §  899,  Duplessis  v.  Kennedy,   6  La.  231. 

and  not  a  gift  with  a  substitution,  These  provisions  are  identical  with 


APPENDIX.  577 

§  767.  "The  donor  is  permitted  to  dispose,  for  the  advantage 
of  any  other  person,  of  the  enjoyment  or  usufruct  of  the  immov- 
able property  given,  but  cannot  reserve  it  for  himself. "  1  If  the 
usufruct  is  reserved  to  the  donor,  the  whole  donation  is  null.2  "The 
right  of  the  usufruct  expires  at  the  death  of  the  usufructuary."* 
Successive  usufructs  may  be  given  to  living  persons.4 

§  768.  "Substitutions  and  fidei  commissa  are  and  remain  pro- 
hibited. Every  disposition  by  which  the  donee,  the  heir,  or  legatee 
is  charged  to  preserve  for  or  to  return  a  thing  to  a  third  person  is 
null,  even  with  regard  to  the  donee,  the  instituted  heir  or  the  lega- 
tee." 5  "The  disposition,  by  which  a  third  person  is  called  to  take 
the  gift,  the  inheritance  or  the  legacy,  in  case  the  donee,  the  heir 
or  the  legatee  does  not  take  it,  shall  not  be  considered  a  substitu- 
tion and  shall  be  valid.6  The  same  shall  be  observed  as  to  the  dis- 
position inter  vivos  or  mortis  causa,  by  which  the  usufruct  is  given 
to  one,  and  the  naked  ownership  to  another."  7 

§  768  a.  La.  St.  1882,  Act  124,  provides  that  nothing  in  the  laws  of 
the  State  "relative  to  substitutions  fidei  commissa  or  trust  disposi- 
tions" shall  be  deemed  to  apply  to  or  in  manner  affect  donations 
inter  vivos  or  mortis  causa  to  trustees  for  educational,  charitable,  or 
literary  purposes.8 

§  769.  In  many  cases  dispositions  have  been  declared  null  as 
being  gifts  with  substitutions.9 

those  of  the  French   Code  Civil.  •  See  Cochrane's  Succession,  29 

See  §  763,  ante.  La.  An.  232. 

1  La.  Rev.  Code,  art.  1533.    The  7  La.    Rev.    Code,    arts.    1521, 

prohibition  of  the  reservation  of  a  1522. 

usufruct  to  the  donor  is  not  in  the  8  See    Burke's    Succession,    51 

French  law.    See  Code  Civil,  §  949.  La.  An.  538.     But  cf .  Female  Or- 

Dawson  v.    Holbert,    4   La.    An.  phan  Soc.  v.  Young  Men's  Christ. 

36.  Ass.,  119  La.  278. 

1  Martin  v.  Martin,  15  La.  An.  '  Cloutier  v.  Lecomte,  3  Mart. 

585.  481,  485.    Farrar  v.  M'Cutcheon,  4 

3  La.  Rev.  Code,  art.  606.    See  Mart.  N.  s.  45.    Arnaud  v.  Tarbe, 

§  764,  ante.  4  La.    502.     Rachal  v.  Rachal,  1 

*  McCalop  v.  Stewart,   11   La.  Rob.  115.     Harper  v.  Stanbrough, 

An.  106.  2  La.  An.  377.     Colvin  v.  Nelson, 

6  La.    Rev.    Code,     art.    1520.  4  La.  An.  544.     Roy  v.  Latiolas, 

See  Beaulieu  v.  Ternoir,  5  La.  An.  5  La.  An.  552.    Wailes  v.  Daniell, 

476;  Succession  of  Beauregard,  49  14  La.  An.  578.    Hoggatt  v.  Gibbs, 

La.  An.  1176.  15  La.  An.  700.    Marshall  v .  Pearce, 


578  THE   RULE  AGAINST  PERPETUITIES. 

§  770.  But  the  Louisiana  courts  declared  that  where  a  dona- 
tion could  be  construed  as  the  gift  of  a  usufruct  and  of  the  naked 
property  instead  of  as  a  case  of  substitution,  it  should  be  done,  in 
order  to  carry  out  the  donor's  or  testator's  wishes;  as,  for  instance, 
when  there  was  a  gift  to  A.  for  life,  and  on  his  death  an  absolute 
gift  to  persons  who  were  in  esse  at  the  time  of  the  gift.1  The  dis- 
tinction between  this  class  of  cases  and  those  cited  in  the  preceding 
section  will  be  found  best  stated  in  Rachal  v.  Racked.2 

§  771.  The  case  of  Provost  v.  Provost 3  seems  to  involve  a  depar- 
ture from  the  doctrine  above  stated; 4  and  in  Marshall  v.  Pearce 5 
the  Supreme  Court  (Bermudez,  C.  J.,  dissenting  totis  viribus)  reversed 
the  previous  policy  of  the  Court,  and  held  that  a  gift  of  property  to  A. 
to  have  and  to  hold  during  her  life,  and  after  her  death  to  B.,  was  void 
as  a  substitution.  The  decision  is  based  on  the  distinction  alleged 
to  exist  under  the  definitions  of  the  Louisiana  Code  between  imperfect 
ownership  for  life  and  usufruct.6 

§  772.  It  is  perhaps  hardly  becoming  in  a  common-law  lawyer 
to  express  an  opinion  upon  such  a  question,  but  it  certainly  seems 
undesirable  to  have  the  sustaining  of  a  will  depend  upon  whether 
the  testator  has  created  a  usufruct  or  an  imperfect  ownership  for 
life.  The  Court  admit  that  there  is  no  such  distinction  in  the  French 
Code  Civil;  nor,  they  might  have  added,  in  the  Roman  law.  It  is 
difficult  to  believe  that  the  lawyers  who  framed  the  Louisiana 

34  La.  An.  557.  Berber's  Succession,  La.  An.   106.     Hasley  v.  Hasley, 

128  La.  111.  Le  Blanc's  Succession,  25  La.  An.  602.    Law's  Succession, 

Id.  1055.    See  Ducloslange  v.  Ross,  31    La.    An.    456.     Succession   of 

3  La.  An.  432;  Murphy  t>.  Cook,  10  Auld,  44  La.  An.  591.    Succession 

La.  An.  572;  Whitehead  t>.  Watson,  of  Good,  45  La.  An.  1392. 
19  La.  An.  68;  Steven's  Succession,  *  1    Rob.   Ill,    118.     See    also 

36  La.  An.   754.     Cf.   Franklin's  Cole  v.  Cole,  7  Mart.  N.  s.  414; 

Succession,  7  La.  An.  395;  Groves  Nimmo  v.   Bonney,   4  Rob.   176; 

v.  Nutt,  13  La.  An.  117,  122,  123;  Michel  v.  Beale,  10  La.  An.  352. 
Perin   v.    McMicken,  15   La.   An.  *  13  La.  An.  574. 

154;  Michon's  Succession,  30  La.  *  In  Anderson   v.  Pike,  29   La. 

An.  213.  An.  120,  the  gift  after  the  life  in- 

1  Ducloslange's     Succession,     4  terest  was  not  absolute. 
Rob.  409.    Fisk  p.  Fisk,  3  La.  An.  •  34  La.  An.  557. 

494.     Roy  v.  Latiolas,  5  La.  An.  •  See  La.  Rev.  Code,  arts.  490, 

552.    Cecile  v.  Lacoste,  8  La.  An.  533;  Succession  of  Auld,  44  La.  An. 

142.     Baker's  Succession,    10  La.  591;  Benson  v.  Cozine,  3  Id.  913. 
An.  28.     McCalop  v.  Stewart,  11 


APPENDIX.  579 

Code  had  any  actual  intention  of   introducing  so  bewildering  a 
subtlety.1 

V.  LAW  OP  TEXAS. 

§  773.  By  the  Spanish  Law  of  1821,  which  was  in  force  hi  the 
Republic  of  Texas,  substitutions  by  way  of  fidei  commissa  were  abol- 
ished;2 but  by  an  Act  of  Texas  in  1840 3  the  Spanish  law  was  abolished 
and  the  common  law  introduced,4  and  therefore  it  is  to  be  presumed 
that  the  common  law  as  to  remoteness  of  limitations  prevails  in 
Texas,  except  so  far  as  modified  by  the  provision  of  the  Constitu- 
tion of  1876,5  that  "perpetuities  and  monopolies  are  contrary  to  the 
genius  of  a  free  government,  and  shall  never  be  allowed."  6 


E. 

DETERMINABLE  FEES. 

§  774.  What  is  said  in  the  second  chapter  upon  the  effect  of  the 
Statute  Quia  Emptores  on  the  possibility  of  creating  detenninable 
fees,  has  called  forth  criticisms  from  two  high  quarters,  one  by  H.  W.  E. 
(whom  I  do  not  think  I  can  be  wrong  in  identifying  with  Sir  Howard 
Warburton  Elphinstone)  hi  a  review  of  the  present  book,7  and  the 
other  by  my  late  learned  friend,  Mr.  H.  W.  Challis,8  hi  reply  to  a  com- 
munication of  mine  to  the  Law  Quarterly  Review.9  Mr.  Challis's  re- 
marks were  first  printed  hi  the  same  volume  of  the  Law  Quarterly 
Review,10  but  were  republished  as  Appendix  IV.  to  the  second  edition 
of  his  valuable  book  on  the  Law  of  Real  Property.  These  criticisms 
are  mutually  destructive. 

1  "They  [the  Louisiana  Codes]          *  See   Bufford  v.  Holliman,  10 

were  written  by  lawyers,  who  mixed  Tex.  560,  571. 
•with  the  positive  legislation,  which  6  Art.  1,  §  26. 

they  contained,  definitions  seldom  *  §  730,  ante. 

accurate,    and   points   of   doctrine  7  2  Law  Quart.  Rev.  394. 

always  unnecessary."    Ellis  v.  Pre-  *  I  cannot  mention  Mr.  Challis 

vost,  13  La.  230,  236.    See  De'pas  without  expressing  my  sense  of  the 

v.  Riez,  2  La.  An.  30,  41  et  seq.  great  loss  the  literature  of  the  law 

1  Gortario  v.  Cantu,  7  Tex.  35.  has  suffered  by  his  death. 

1  Pasch.  Dig.,  art.  978.  •  3  Law  Quart.  Rev.  399. 

"  P.  403. 


580  THE   RULE   AGAINST  PERPETUITIES. 

§  775.  Sir  Howard  Elphinstone  says  that  my  "reasoning  against 
the  possibility  of  reserving  a  right  of  reverter  to  the  grantor  is 
conclusive,"  but  that  the  truth  is  "that  when  the  limita- 
tion comes  to  an  end  the  land  will  fall  into  the  hands  of  the 
lord  of  the  fee  by  a  right  somewhat  in  the  nature  of  an  escheat." 
But  Mr.  Challis  thinks  that  it  is  the  grantor  and  not  the  lord 
who  has  the  possibility  of  reverter.1  The  inability  of  two  such 
distinguished  writers  to  agree  who  has  the  possibility  of  reverter  is 
perhaps  an  argument  in  favor  of  the  view  that  there  is  no  possi- 
bility of  reverter  at  all. 

§  776.  I.  Sir  Howard  Elphinstone' s  theory  that  the  possibility 
vf  reverter  is  in  the  lord.  Against  this  theory  it  may  be  urged:  (1)  It 
has  never  been,  so  far  as  I  am  aware,  before  stated  or  suggested  by 
any  judge,  counsel,  or  writer.  (2)  In  several  of  the  dicta  of  judges 
in  which  determinable  fees  have  been  spoken  of  as  estates  which  can 
still  be  created,  it  is  said  that  the  possibility  of  reverter  is  in  the 
grantor.  Thus  Choke,  J.:  "As  if  I  give  land  to  a  man  to  have  to  him 
and  his  heirs  in  fee  so  long  as  John  A' Down  has  issue  of  his  body,  La 
that  case  the  feoffee  will  hold  of  his  lord,  &c. ;  yet  if  John  A'Down  dies 
without  heir  of  his  body,  &c.,  in  that  case  I  may  well  enter,  &c.  But 
not  by  escheat,  &c.,  but  because  the  feoffment  is  determined." 2 
So  Houghton,  J.:  "If  a  man  give  or  devise  lands  to  one  and  his  heirs 
so  long  as  J.  S.  hath  issue  of  his  body,  he  shall  not  by  recovery  bind 
him  who  made  this  gift,  without  making  him  a  party  by  way  of 
vouchee."  3  Again  Treby,  C.  J.,  and  Powell,  J.:  "A  man  may  have 
a  possibility  of  reverter,  where  he  cannot  limit  a  remainder;  as  if  A. 
gives  lands  to  B.  and  his  heirs  during  the  time  that  such  an  oak  shall 
grow,  he  hath  a  possibility  of  reverter,  though  no  remainder  can 
be  limited."  4  (3)  The  right  to  enter  for  condition  broken  did  not 
pass  to  the  lord.  (4)  Land  given  in  frankalmoign  could  be  held 
only  of  the  donor,  and  the  Statute  Quia  Emptores  was  construed 
not  to  have  changed  this;  and  so  the  granting  of  an  estate  in  frankal- 
moign became  impossible  to  a  subject.8  (5)  Before  the  Statute  De 
Donis  estates  in  fee  simple  conditional  seem  to  have  been  held  of  the 

1  Real  Prop.  (3d  ed.)  437.  Raym.   325;   and  cf.   Lord  Hard- 

1  7  Edw.  IV.  12  a.  wicke,  C.,  in  Lethieullier  v.  Tracy, 

»  Pells  v.  Brown,  Cro.  Jac.  590,  3  Atk.  774. 
693.  8  Lit.  §§  140,  141. 

4  Ayers    v.    Falkland,    1     Ld. 


APPENDIX.  581 

donor;  and  after  that  statute  a  provision  attached  to  an  estate  tail 
that  it  should  be  held  of  the  donor's  lord  was  void.1 

§  777.  II.  Mr.  Challis's  theory  that  the  possibility  of  reverter  is  in 
the  feoffor.  The  only  argument  which  Mr.  Challis  adduced,  and 
therefore  the  only  one  I  can  meet,  was  this:  The  Statute  Quia  Emptores, 
in  its  third  section,  provides  "that  it  extendeth  but  only  to  lands 
holden  in  fee  simple,"  and  therefore  estates  hi  fee  simple  determinable 
are  excluded  from  its  operation;  that  is,  a  determinable  fee  is  held 
of  the  feoffor  just  as  an  estate  tail  is  held  of  the  donor.  But  is  not  this 
as  novel  a  theory  as  that  of  Mr.  Sanders?  Has  not  the  common 
notion  been  that  a  determinable  fee  is  held  of  the  feoffor's  lord,  pre- 
cisely as  an  estate  on  condition  subsequent  is  held  of  such  lord?  Mr. 
Justice  Choke  thought  so:  "As  if  I  give  land  to  a  man  to  have  to  him 
and  his  heirs  in  fee  so  long  as  John  A'Down  has  issue  of  his  body,  in 
that  case  the  feoffee  will  hold  of  his  lord,  &c.,  yet  if  John  A'Down  dies 
without  heirs  of  his  body,  &c.,  in  that  case  I  may  well  enter."  2  I 
have  looked  in  vain  for  any  expression  of  opinion  to  the  contrary. 
Suppose  A.  makes  a  feoff ment  of  Blackacre  to  B.  and  his  heirs  until 
C.  goes  to  Rome,  and  B.,  being  a  bastard,  dies  without  issue,  and 
suppose  C.  has  died  in  the  lifetime  of  B.  without  going  to  Rome,  so 
that  there  is  now  no  limitation  upon  the  estate,  does  the  tenure  change? 
Before  C.'s  death  was  the  land  held  of  A.,  and  is  it  now  held  of  A.'s 
lord?  The  fact  that  such  difficulties  did  not  occur  to  the  profession 
shows  how  perfunctory  was  the  consideration  given  to  the  theory  of 
determinable  fees. 

§778.  Mr.  Challis  says3  "that  a  cardinal  result  of  the  Statute 
of  Quia  Emptores  should  be  left  to  be  discovered  by  Sanders"  is 
'"extremely  improbable,  and  even  cousin  german  to  impossible,'" 
and  that  "in  reading  his  [Sanders's]  writings  I  have  always  felt 
like  a  traveller  in  a  strange  land,  where  everything  wears  an  odd 
and  unexpected  appearance."  This  unfamiliar  aspect  of  certain 
legal  writers  is  a  not  uncommon  experience.  But  it  is  largely  a  sub- 
jective matter.  Mr.  Sanders  strikes  Mr.  Challis  as  queer.  I  do 
not  think  he  ever  produced  that  impression  on  me.  On  the  other 
hand  in  reading  Mr.  Preston,  to  whom  Mr.  Challis  pays  as  much 

1  2  Inst.  505.    But  see  Marton  *  7  Edw.  IV.  12  a. 

v.  Prior  of  Gisburn,  2  Edw.  II.  114,  »  Real  Prop.  (3d  ed.)  437. 

19  Seldon  Soc.  21 


582  THE  RULE  AGAINST  PERPETUITIES. 

deference  as  so  independent  a  writer  can,  I  feel  in  fairyland,  a  very 
tedious  fairyland. 

§  779.  If  the  effect  of  the  Statute  Quia  Emptores  on  possibilities 
of  reverter  had  been  a  burning  question,  either  practically  or  theo- 
retically, for  over  six  hundred  years,  it  is  indeed  extremely  unlikely 
that  it  should  have  been  reserved  for  Mr.  Sanders  to  discover  the 
true  doctrine.  But,  so  far  as  we  know,  the  question  never  came  up 
practically,  and  it  was  so  little  considered  theoretically  that  the 
highest  authorities  at  the  present  day  cannot  find  materials  enabling 
them  to  come  to  an  agreement  upon  the  most  fundamental  matter 
concerning  it.  Under  these  circumstances  it  is  not,  I  submit,  strange, 
that  a  clever,  original  man  should,  even  in  the  nineteenth  century, 
hit  upon  a  plausible  effect  that  could  be  given  to  a  statute  which  had 
never  occurred  to  any  one  before.  For  the  question  of  determinable 
fees  never  came  up  practically;  it  was  little  the  disposition  of  English 
lawyers  to  trouble  themselves  about  questions  which  did  not  come 
up  practically;  and  when  determinable  fees  were  spoken  of  in  court 
or  in  treatises  it  was  rather  by  the  way  "of  ornament  to  the  discourse," 
as  Lord  Coke  would  say,  than  as  furnishing  really  valuable  analogies. 

§  780.  Mr.  Sanders's  shoulders,  however,  have  not  to  support 
alone  the  weight  of  the  doctrine  that  there  are  now  no  such  things 
as  determinable  fees.  Chief  Justice  Anderson,  in  his  own  reports, 
although  not  referring  to  the  Statute  Quia  Emptores,  states  em- 
phatically that  "if  land  be  given  to  one  and  his  heirs  so  long  as  J.  S. 
or  his  hsirs  may  enjoy  the  manor  of  D.,  these  words  (so  long)  are 
utterly  vain  and  idle,  and  do  not  abridge  the  estate,"  and  then  goes 
on  to  point  out  clearly  the  distinction  between  determinable  and 
base  fees.1  And  Mr.  Sanders  has  had  a  most  respectable  following,  — 
the  Commissioners  on  Real  Property,  Mr.  Leake,  Mr.  Marsden,  Sir 
Frederick  Pollock;2  and  in  Collier  v.  Walters3  the  notion  that  an  estate 
until  a  testator's  debts  were  paid  was  a  determinable  fee  received  a 
crushing  condemnation  which  was  not  based  on  anything  peculiar 
to  the  limitation. 

§  781.  When  we  say  that  the  Statute  Quia  Emptores  did  or  did 
not  put  an  end  to  detenninable  fees,  we  are  not  inquiring  into  the 

1  Christopher  Corbet's  Case,  2  *  L.  R.  17   Eq.  252;  see  §  37, 

And.  134;  see  §  35,  ante.  ante. 

1  See  §  36,  ante. 


APPENDIX.  583 

truth  of  an  alleged  physical  fact,  as,  for  instance,  whether  in  the 
year  1289  John  Stiles  killed  Robin  A'Green.  What  is  meant  is  that 
the  Courts  would  or  would  not  after  the  Statute  have  allowed  such 
determinable  fees.  Of  this  we  know  nothing,  and  very  likely  never 
shall  know  anything.  The  real  question  we  are  considering  is  not, 
however,  an  historical  one,  but  it  is  what  is  the  way  in  which  courts 
do  and  ought  to  decide  this  matter  at  the  present  day;  and  I  sub- 
mit the  proper  way  to  approach  it  is  this: 

Future  contingent  remote  limitations  are  universally  disapproved 
at  the  present  day;  courts  and  legislatures  alike  condemn  them. 

There  is  an  alleged  exception  in  the  case  of  possibilities  of  reverter 
after  determinable  fees. 

There  is  no  rational  distinction  in  this  respect  between  possibilities 
of  reverter  and  other  contingent  remote  limitations. 

By  the  theory  of  the  common  law,  decisions  of  the  courts  made 
in  earlier  times  and  since  followed,  will  be  respected,  even  although 
they  would  not  now  be  made,  or  even  although  they  introduce  anoma- 
lies into  the  law. 

There  have  been  no  such  decisions  as  to  determinable  fees. 

It  is  practicable  to  give  a  reasonable  construction  to  the  Statute 
Quia  Emptores  which  will  do  away  with  the  supposed  objectionable 
exception. 

A  court  is  justified  in  adopting  this  construction,  although  it  may 
not  feel  sure  that  the  judges  of  the  thirteenth  century  would  have 
done  so.  Being  fortunate  in  not  being  hampered  with  an  antique  and 
narrow  precedent  they  ought  to  use  their  freedom  intelligently,  and 
not  impose  irrational  and  arbitrary  exceptions  which  they  can  avoid. 

§  782.  A  serious  objection  to  the  continuance  of  the  old  doctrines 
of  real  property  in  the  jurisprudence  of  to-day  is  that,  while  the 
judges  are  thoroughly  familiar  with  and  move  at  ease  among  the 
general  doctrines  of  contract  and  equity  which  govern  the  ordinary 
transactions  of  modern  life,  it  is  impossible  (or  if  not  impossible  at 
least  very  unlikely)  that  they  should  have  at  then-  fingers'  ends  the 
fundamental  distinctions  of  a  highly  artificial  system,  and  they  are 
in  danger  of  being  unduly  governed  by  "the  cantilena  of  lawyers" 
and  of  losing  opportunities  for  the  simplification  of  the  law.1 

1  Mr.  Charles  Sweet,  the  learned  Challis's  book,  says  that  he  "thinks 
editor  of  the  third  edition  of  Mr.  that  the  weight  of  authority  and 


584  THE   RULE   AGAINST  PERPETUITIES. 

§  783.  There  is  a  series  of  cases  which  in  this  connection  demands 
attention.  In  Doe  d.  Blomfidd  v.  Eyre1  on  the  marriage  of  M.  copy- 
holds were  settled  on  her  husband  for  life,  and  on  his  death  to  her 
children  as  she  should  appoint.  M.,  having  two  sons,  appointed  the 
copyholds  to  her  son  J.  and  his  heirs,  but  if  both  her  sons  died  before 
her  husband,  then  to  her  father-in-law.  Both  sons  died  before  the 
husband.  The  Court  of  Common  Pleas  held  that  a  gift  over  in  de- 
fault of  appointment  took  effect;  they  said  it  was  immaterial  whether 
the  gift  to  J.  was  so  mixed  with  the  void  gift  to  the  father-in-law  that 
it  failed  altogether,  or  whether  J.  took  an  interest  which  had  been 
defeated,  by  the  sons  dying  in  the  father's  lifetime.  This  latter  view 
had  not  been  taken  by  counsel.  The  case  was  then  carried  on  error 
to  the  Exchequer  Chamber,  and  the  Court  there,  consisting  of  Parke, 
B.,  Alderson,  B.,  Coleridge,  J.,Platt,  B.,  Erie,  J.,  Rolfe,  B.,  and  Wights 
man,  J.,  affirmed  the  judgment,  on  the  ground  that  J.'s  estate  had 
been  divested.  In  the  course  of  argument  the  following  dialogue 
took  place:  Parke,  B.,  "What  estate  do  you  contend  that  J.  took?" 
Bovill,  for  the  defendant  in  error:  "It  is  difficult  to  define  it  with  ac- 
curacy, seeing  that  copyholds  are  not  within  the  statute  of  uses. 
Perhaps,  the  best  definition  would  be,  to  call  it  a  qualified  conditional 
limitation  in  fee."  Platt,  B.,  "Or,  a  conditional  copyhold  of  inherit- 
ance." 2  This  case  cannot  be  considered  as  an  authority  in  favor  of 
a  possibility  of  reverter  in  freehold  estates  at  the  present  day,  for: 

(1)  The  appointment  must  be  read  into  the  original  settlement,  and 
the  gift  in  default  of  appointment  becomes  an  executory  limitation. 

(2)  The  estates  in  question  were  copyhold,  and  copyholds  are  not  sub- 
ject to  the  Statute  Quia  Emptores,  and  therefore  there  is  no  reason 
why  a  determinable  fee  should  not  exist  in  copyhold  land.3 

§  784.  In  Robinson  v.  Wood4  land  was  devised  to  trustees  in  trust 
to  convey  the  same  to  A.  when  she  attained  twenty-one,  but  if  she 
should  die  under  twenty-one  without  leaving  issue  her  surviving, 
then  to  sell  the  same  and  pay  the  proceeds  to  a  charity.  The  gift  to 
the  charity  was  void  under  the  Mortmain  Act.  Kindersley,  V.  C., 
on  the  authority  of  Doe  d.  Blomfield  v.  Eyre,  held  that  on  the  death 

argument  is  against  Mr.  Challis."  *  See    1    Tiffany,    Real    Prop. 

Challis,  Real  Prop.  (3d  ed.)  439.  §  148. 

»  3  C.  B.  557;  5  C.  B.  713.  «  27  L.  J.  Ch.  726. 

»  5C.  B.  735  ad  fin. 


APPENDIX.  585 

of  the  daughter  without  leaving  issue  her  surviving,  her  estate  was 
determined.  But  here  the  interests  were  equitable  and  the  question 
was  not  of  a  legal  possibility  of  reverter  but  of  a  resulting  trust.1 

§785.  In  O'Mahoney  v.  Burdett2  a  testatrix  bequeathed  £1,000 
in  the  3^6  Irish  stock  to  her  sister  for  life,  and  after  her  death  to  her 
sister's  daughter,  but,  if  this  niece  should  die  unmarried  or  without 
children,  the  £1,000  to  revert  to  the  nephew  of  the  testatrix;  and  she 
made  Burdett  her  executor  and  residuary  legatee.  The  sister  and 
nephew  both  died  hi  the  lifetime  of  the  testatrix.  The  Master  of 
the  Rolls  hi  Ireland  made  an  order  declaring  that  the  niece  was  ab- 
solutely entitled  to  the  legacy.  The  Court  of  Appeal  in  Chancery 
reversed  the  order;  and  the  House  of  Lords  affirmed  the  decision  of 
the  Court  of  Appeal,  and  held  that  the  legacy  fell  into  the  residue. 
This  again  was  not  a  case  of  a  possibility  of  reverter  but  of  interests  in 
personalty. 

§  786.  It  may  be  added  that  the  cases  cited  hi  the  last  three  sec- 
tions are  perhaps  not  to  be  accepted  as  certain  law.  Doe  d.  Blomfield 
v.  Eyre  has  in  its  support  the  great  authority  of  the  many  distin- 
guished judges  who  decided  it  both  hi  the  Common  Pleas  and  in  the 
Exchequer  Chamber,  and  also  of  the  approval  of  Lord  St.  Leonards.3 
But  it  must  be  observed  that  the  point  that  the  estate  appointed  to  the 
son  determined  upon  the  happening  of  the  given  contingency,  although 
the  appointment  over  on  that  contingency  was  void,  was  not  argued 
before  the  Court  of  Common  Pleas,  and  was  spoken  of  by  that  Court 
as  immaterial; 4  that  the  decision  was  at  once  criticised  by  the  learned 
reporter  hi  a  note;  that  although  it  has  been  followed  by  Robinson 
v.  Wood,5  and  Hurst  v.  Hurst*  yet  no  judge  has  said  anything  in  its 
favor;  and  Kindersley,  V.  C.,  in  the  former  case  and  Fry,  J.,  in  the 
latter,  intimated  plainly  that  they  thought  the  decision  wrong.  If 
I  may  venture  to  express  an  opinion,  Doe  d.  Blomfield  v.  Eyre  has 
always  seemed  one  of  the  most  inexplicable  cases  in  the  books.  It 
was  decided  by  some  of  the  most  eminent  judges  of  modern  times, 
but  how  they  could  have  decided  it  as  they  did,  against  the  marked 
policy  of  the  law  for  not  readily  divesting  vested  estates,  has  been 

1  See  §§  327,  327  a,  ante.  4  3  C.  B.  580. 

1  10  Ir.  Ch.  14;  L.  R.  7  H.  L.  6  27  L.  J.  Ch.  726. 

388.  •  21  Ch.  D.  278. 
8  Sugd.  Pow.  (8th  ed.)  513. 


586  THE   RULE   AGAINST   PERPETUITIES. 

as  great  a  puzzle  to  me  as  it  has  been  to  Vice-Chancellor  Kindere- 
ley  and  to  Mr.  Justice  Fry.1 

§  787.  In  O'Mahoney  v.  Burdett  no  question  of  the  effect  of  the 
lapse  of  the  executory  devise  to  the  nephew  of  the  testatrix  was  dis- 
cussed in  the  Irish  Chancery.  The  whole  argument  and  the  whole 
decision  was  directed  to  the  question  whether  the  gift  over  upon  the 
death  of  the  niece  of  the  testatrix  unmarried  or  without  issue  was  con- 
fined to  her  death  during  the  lifetime  of  the  one  having  the  life  interest; 
and  what  is  said  in  the  House  of  Lords  on  the  effect  of  the  lapse  is 
short  and  most  unsatisfactory.  Lord  Cairns,  C.,  said:  "This  point 
was  not  raised  in  the  court  below,  and  I  am  satisfied  that  the  gift 
to  Colonel  L'Estrange  having  failed  by  lapse  the  residuary  legatee  is 
entitled  to  take  all  that  Colonel  L'Estrange,  if  living  at  the  death  of 
the  testatrix,  could  have  taken."  2  Lord  Selborne  said:  "When  the 
appeal  was  first  opened,  I  doubted  whether,  under  these  circumstances, 
the  effect  of  the  divesting  clause  was  not  wholly  evacuated,  in  the 
same  way  as  if  there  had  been  a  blank  in  the  will  for  the  name  of 
the  substituted  legatee.  But  the  result  of  the  preliminary  argument 
on  that  point,  and  of  the  authority  cited  by  the  Respondent,3  has 
been  to  satisfy  me  that  the  lapse  of  a  contingent  gift,  by  way  of  sub- 
stitution, to  a  person  named  who  might  have  survived  the  testatrix, 
operates  (when  the  contingency  has  happened  on  which  the  gift  to  the 
person  was  made  to  depend)  for  the  benefit  of  the  residuary  legatee, 
or  next  of  kin,  in  the  same  way  as  if  the  gift  had  been  originally  made 
to  the  same  person,  free  from  any  contingency."  4 

§  788.  If  O'Mahoney  v.  Burdett  can  be  supported  it  must  be, 
it  is  submitted,  on  the  ground  suggested  for  such  a  decision  in  the 
note  to  Doe  d.  Blomfield  v.  Eyre. 5  "Where  there  is  a  devise  by  A.  to  B., 
in  fee,  defeasible,  on  an  event  which  happens,  in  favor  of  C.  in  fee, 
and  C.  dies  in  the  lifetime  of  A.,  the  only  mode,  it  is  conceived,  by 
which  the  heir  of  A.  could  be  let  in  would  be  to  treat  the  devise  to  B. 

1  See  2  Jarm.  Wills   (6th  ed.)          *  L.  R.  7  H.  L.  399. 
1436.     If  a  good  appointment  in  fee  *  Quaere :    What    was    this    au- 

is  followed  by  an  appointment  over  thority?    It  does  not  appear  from 

in  the  nature  of  an  executory  de-  the  report, 
vise  which  is  bad  for  remoteness  the  *  L.  R.  7  H.  L.  407,  408. 

doctrine  of  these  cases,  even  if  good,  *  5  C.  B.  748. 

would  not,  it  is  presumed,  apply. 
See  §§  247,  534,  ante. 


APPENDIX. 


587 


as  revoked  by  the  devise  to  C.  becoming  absolute,  and  to  consider 
the  heir  of  A.  as  in  by  the  lapse  of  the  devise  to  C.,  instead  of  treating 
the  devise  to  B.  as  ceasing  to  be  defeasible  on  the  failure  of  the  devise 
to  C."  But  it  may  be  questioned  whether  this  is  a  correct  view  of  the 
lapse.  Does  not  the  heir  take  because  there  is  now  no  devisee,  and 
not  because  he  stands  in  the  place  of  the  devisee?  The  only  other 
case  where  I  have  found  the  question  raised  was  in  New  Jersey,  and 
there  the  decision  was  the  other  way.1' 2 


F. 

FUTURE  INTERESTS  IN  PERSONAL  PROPERTY.1 

§  789.   Lord  Coke,  in  Lampet's  Case,4  says,  "This  case  of  a  devise 
of  a  lease  for  years  to  one  for  life,  and  after  his  death  to  another  during 


1  Drummond  v.  Drummond,  11 
C.  E.  Green,  234. 

2  My  learned  friend,   Professor 
F.  W.  Maitland,  has  called  my  at- 
tention to  a  curious  entry  in  the 
records  of  the  Inner  Temple.     In 
1506   "Knyghtley  and   Baker  are 
assigned   a   chamber  newly   made 
under    the    library,    and    because 
they  have  laid  out   many  neces- 
sary expenses  upon  the  same,  the 
chamber  is  assigned  to  them  and 
their  heirs,  being  members  of  the 
society."      1    Calendar    of    Inner 
Temple  Records,  6.    Whether  this 
assignment  was  in  the  nature  of  a 
license  or  whether  it  was  an  attempt 
to  grant  a  determinable  or  rather 
intermittent  fee,  quaere.    Cf.  Chal- 
lis,  Real  Prop.  (3d  ed.)  113. 

3  The  substance  of  this  Appen- 
dix was  printed  as  an  article  in  14 
Harv.    Law   Rev.    397.     To   that 


article  was  prefixed  the  following 
dialogue,  which  is  retained  here  be- 
cause, though  rather  light  in  form, 
it  may  aid  to  bring  out  more  clearly 
the  questions  discussed  in  this 
Appendix. 

Some  time  ago,  a  student  at  the 
Harvard  Law  School  came  to  me 
with  the  question  which  was  puz- 
zling him.  We  had  a  long  talk,  in 
which  many  diversities  were  taken 
and  points  resolved,  but  the  sub- 
stance of  the  discussion  can  be  put 
into  the  form  of  a  short  Socratic 
dialogue  in  which  I  do  not  play  the 
part  of  Socrates. 

S.  If  a  silver  cup  is  bequeathed 
to  a  man  for  his  life,  and  on  his 
death  to  a  college,  you  say,  do  you 
not,  that  the  man  has  the  absolute 
property,  and  that  the  college  has 
not  an  interest  in  the  nature  of  a 


4  10  Co.  46  6,  47  a. 


588 


THE   RULE   AGAINST  PERPETUITIES. 


the  residue  of  the  term,  hath  produced  septem  qucestiones  vexatas  et 
spinosas."    The  case  of  a  like  bequest  of  a  chattel  personal  has  added 


vested  remainder,  but  has  an  ex- 
ecutory interest. 

G.  That  is  what  I  say. 

S.  Suppose  the  testator  be- 
queaths the  cup  to  Irs  son  for  life, 
and  on  his  death  to  the  son's  eldest 
son  for  life,  and  then  to  the  college, 
and  that  the  testator's  son  is  never 
married,  is  the  gift  to  the  college 
too  remote? 

G.   No,  it  is  not  too  remote. 

S.  But  if  it  is  executory,  as  you 
say,  surely  it  is  too  remote. 

G.  It  is,  indeed,  on  the  one  hand, 
executory,  but  on  the  other  hand  it 
is  to  be  considered,  on  a  question  of 
remoteness,  as  if  it  were  a  devise  of 
land,  and,  if  it  were  land,  the  gift 
to  the  college  would  be  vested  and 
therefore  not  too  remote.  You  will 
find  the  authorities  in  §  117  of  my 
book  on  the  Rule  against  Perpetui- 
ties [1st  ed.]. 

S.  Let  me  put  another  case: 
Suppose  I  give  a  cup  to  a  man  to 
hold  during  his  life,  and  I  say  noth- 
ing as  to  what  is  to  happen  on  his 
death,  where  does  the  cup  go  on  his 
death? 

G.  Surely  it  comes  back  to  you, 
or  if  you  are  dead,  then  to  your 
executor. 

S.  How  can  that  be?  The  man, 
you  say,  has  the  absolute  property; 
there  is  no  gift  away  from  him. 
Why  does  not  the  cup  go  to  his 
executor? 

G.  In  Delaware,  indeed  it  does; 
but  in  the  rest  of  the  common-law 
world  it  comes  back  to  you,  as  I 
have  said. 

S.  For  most  purposes  it  is  all  the 
same  whether  a  future  interest  in 


personalty  is  vested  or  executory, 
is  it  not  ? 

G.  That  is  true. 

S.  I  have  suggested  two  classes 
of  cases  in  which  it  is  important 
whether  you  consider  a  future  in- 
terest in  a  chattel  to  be  vested  or 
executory.  Do  you  know  of  any 
other? 

G.  I  do  not  at  present  think  of 
any  other  classes  of  cases. 

S.  Nor  do  I  think  of  any  other. 
This  is,  then,  what  you  do;  you  say 
that  future  interests  in  chattels  are 
executory,  and  yet  in  the  only  cases 
in  which  it  is  of  any  consequence 
whether  they  are  vested  or  execu- 
tory, you  treat  them  as  vested. 

G.  It  would  seem  that  that  is 
what  I  do. 

S.  But,  by  the  shade  of  that 
great  man,  Mr.  Pooley,  that  is 
strange. 

G.  It  is  indeed  strange. 

S.  Why  do  you  act  thus? 

G.  It  is  desirable  that  future  in- 
terests in  personalty  should  be  con- 
sidered vested  for  several  reasons. 
First  — 

S.  Pardon  me,  but  I  do  not  deny 
that  future  interests  in  personalty 
should  be  treated  as  vested,  —  that, 
indeed,  is  excellent,  —  but  why,  if 
you  always  treat  them  as  if  they 
were  vested,  do  you  persist  in  call- 
ing them  executory? 

G.  Because  Lord  Coke,  and  Mr. 
Preston,  and  Mr.  Joshua  Williams 
say  I  must.  We  should  revere  the 
gods. 

I  do  not  know  whether  this  con- 
clusion was  satisfactory  to  my  in- 


APPENDIX.  589 

to  the  difficulty  of  these  questions;  they  have  never  been  satisfactorily 
solved,  nor  does  such  solution  seem  possible  until  a  clear  conception 
is  formed  of  the  nature  of  future  interests  in  personalty.  This  concep- 
tion has  hitherto  been  absent  in  the  law. 

§  790.  Property  is  a  right  in  rem  (or  against  all  the  world)  which 
gives  to  the  owner  of  the  right  an  indefinite  (though  not  necessarily 
an  unrestricted)  power  of  user  over  a  thing,  as  opposed  to  a  right 
in  aliena  re,  such  as  an  easement  or  servitus,  which  gives  the  person 
having  the  right  a  certain  definite  power  of  user  over  a  thing  in  which 
another  has  the  property. 

§  791.  Property 1  may  be  of  either  limited  or  unlimited  duration. 
At  least,  this  is  the  doctrine  of  the  common  law  with  regard  to 
land.  Property  in  land  is  called  an  estate.  It  may  either  be  a  right 
which  on  the  owner's  death  passes  to  successors,  determined  by 
certain  rules,  indefinitely  —  that  is,  without  defined  limit  —  as  an 
estate  in  fee-simple  or  in  fee-tail;  or  it  may  be  a  right  for  a  period 
which  must  come  to  an  end,  although  the  time  at  which  it  will  de- 
termine is  uncertain  —  as  an  estate  for  life;  or  again  it  may  be  a  right 
for  a  period  which  has  a  termination  certain  —  as  an  estate  for  years. 

§  792.   Estates  are  either  present  or  future. 

§  793.   Future  estates  are  either  vested  or  executory. 

§  794.  I.  A  vested  future  estate  is  one  which  is  prevented  from 
coming  into  possession  only  by  the  existence  of  some  previous  estate 
or  estates;  it  is  an  estate  which  is  ready  to  come  into  possession  in 
whatever  way  and  at  whatever  tune  the  preceding  estate  or  estates 
determine.  For  instance,  if  land  is  devised  to  A.  for  life,  and  subject 
to  A.'s  life  estate,  to  B.  and  his  heirs,  B.  has  a  vested  estate.  These 
estates  are  reversions  or  vested  remainders. 

§  795.  II.  An  executory  estate  is  one  which  will  not  become  a 
present  estate  until  something,  other  than  the  termination  of  a  pre- 
vious estate  or  estates,  occurs. 

§  796.  This  something  may  be  an  event  certain  or  uncertain. 

§  797.  A.  If  it  is  a  certain  event. 

(1)  It  may  be  one  which  will  happen  at  a  time  certain. 

Thus,  a  devise  of  land  to  A.,  to  hold  from  the  first  day  of  Janu- 

terlocutor;  it  certainly  was  not  to  1  Much   that    is    said    here  of 

me.    But  the  conversation  set  me  property  is  true,  mutatis  mutandis, 

a  thinking  on  the  true  nature  of  of  rights  in  aliena  re. 
future  interests  in  personalty. 


590  THE   RULE   AGAINST  PERPETUITIES. 

ary  after  the  testator's  death,  creates  an  executory  estate  of  this 
first  sort. 

Or  (2)  it  may  be  an  event  which  will  certainly  happen,  but  of 
which  the  time  of  happening  is  uncertain. 

Thus,  a  devise  of  land  to  B.  from  and  after  the  death  of  A.  (A. 
not  taking  a  life  interest)  creates  an  executory  estate  of  this  second 
kind. 

§  798.  B.  If  it  is  an  uncertain  event. 

Then  the  estate  is  a  contingent  one. 

(1)  It  may  be  one  which  must  come  into  possession,  if  at  all, 
on  the  termination  of  a  preceding  estate  or  estates  as  originally  limited. 
Estates  of  this  first  kind  are  contingent  remainders. 

Thus,  upon  a  devise  of  land  to  A.  for  life,  and  if  A.  die  unmar- 
ried then  to  B.  and  his  heirs,  B.  has  a  contingent  remainder. 

Or  (2)  it  may  be  an  estate  which  may  come  into  possession  at 
a  time  other  than  the  termination  of  the  preceding  estate  or  estates 
as  originally  limited. 

Thus,  upon  a  devise  of  land  to  A.  and  his  heirs,  but,  if  A.  die  un- 
married to  B.  and  his  heirs,  B.  has  an  executory  interest  of  this  second 
kind. 

§  799.  Estates  of  all  the  above  kinds  can  be  created  in  land  at 
the  present  day,  but  originally  this  was  not  so.  Owing  to  familiar 
doctrines  of  the  feudal  law,  into  which  it  is  unnecessary  here  to  go, 
the  only  future  estates  originally  allowed  by  the  Law  were  estates 
which  fitted  on  to  previous  estates,  without  cutting  them  short, 
or  leaving  a  gap.  These  estates  were  called  reversions  or  remain- 
ders, and  they  came  into  possession  either  whenever  and  however 
the  previous  estates  determined,  in  which  case  they  were  rever- 
sions or  vested  remainders  (I.  ante),  or  else  they  came  into  possession 
immediately  upon  the  determination  of  the  previous  estates  as  orig- 
inally limited,  if  some  event  (other  than  the  determination  of  the 
preceding  estates)  had  or  had  not  happened.  In  this  case  they  were 
contingent  remainders.  Of  these  latter,  II.  B  (1)  is  the  type. 

§  800.  The  other  kinds  of  executory  estates  were  brought  in  by 
the  Statute  of  Uses  and  the  Statutes  of  Wills,  and  are  represented 
by  II.  A  (1)  and  (2);  and  II.  B  (2);  they  have  various  names  —  spring- 
ing uses,  shifting  uses,  executory  devises,  conditional  limitations. 

§  801.  It  will  be  noticed  that  Contingent  Remainders  are  here 
classed  among  Executory  estates,  as  opposed  to  Vested  Estates; 


APPENDIX.  591 

this  is  a  convenient  classification,  and  there  does  not  seem  any  good 
term  other  than  Executory  Estates  to  express  the  opposite  of  Vested 
Estates.  But,  to  prevent  confusion,  it  must  be  borne  in  mind  that 
Contingent  Remainders  are  often  excluded  from  the  definition  of 
Executory  Estates,  and  a  distinction  made  between  Remainders, 
Vested  and  Contingent,  on  the  one  hand,  and  Executory  Estates  on 
the  other,  a  Remainder  being  an  interest  which  will  come  into  posses- 
sion, if  it  comes  at  all,  on  the  termination  of  some  estate  as  originally 
limited.  That  is,  Vested  Estates  are  opposed  to  Executory  Estates 
in  the  larger  sense,  which  consist  of  Contingent  Remainders  and  of 
Executory  Estates  in  the  narrower  sense. 

§  802.  There  are  no  feudal  doctrines  and  no  statutes  limiting  the 
creation  of  future  interests  in  personal  property,  and  there  is  no 
reason  in  the  nature  of  things  why  the  law  should  not  allow  the  same 
future  interests  in  personalty  as  are  allowed  hi  realty;  we  shall  see, 
however,  that  this  has  not  always  been  supposed  to  be  the  case. 

§  803.  Personal  property  is  of  two  lands,  chattels  real  and  chattels 
personal.  When  future  interests  hi  personal  property  have  been  in 
discussion,  mistakes  have,  I  think,  occurred  from  the  two  kinds  of 
chattels  being  confused. 

§  804.  Estates  in  land  which  have  a  termination  certain,  that  is, 
estates  for  years,  are  not  deemed  in  the  common  law  realty,  but 
personalty;  if  the  owner  dies  before  the  years  have  run  out,  the  estate 
goes  not  to  his  heirs,  but  to  his  executors.1  Such  an  estate  is  a  chattel 
real,  and  there  may  be  estates  or  interests  in  it.  Let  us  take  the  in- 
terests in  realty  and  see  how  far  they  can  be  applied  to  chattels  real. 
These  interests  are  of  three  kinds:  (I.)  Rights  passing  on  death  to 
successors;  (II.)  Rights  which  determined  at  a  fixed  tune,  estates  for 
years;  (III.)  Rights  which  must  determine,  but  whose  tune  of  ter- 
mination is  uncertain,  estates  for  life. 

§  805.  I.  Rights  passing  on  death  to  successors.  In  the  earliest 
tunes,  estates  for  years  might  be  made  transmissible  to  heirs,2  but 
for  centuries  the  only  successors  on  death  that  the  common  law 
has  allowed  in  chattels  real  have  been  executors  or  administrators, 
and  therefore  a  lease  for  years  to  A.  and  his  heirs,  or  to  A.  and  the 
heirs  of  his  body,  is  regarded  as  an  inexact  but  successful  attempt 
to  give  an  estate  for  years  to  A.  and  his  executors  and  administrators.* 

1  See  2  P.  &  M.  Hist.  Eng.  Law  «  See  Id.  115. 

(2d  ed.)  110-117.  »  Lit.  §  740;  Co.  Lit.  388  a. 


592  THE  RULE  AGAINST  PERPETUITIES. 

§  806.  II.  Passing  to  estates  for  years  in  chattels  real,  we  find 
that  such  estates  in  the  form  of  sub-leases  have  been  allowed  from 
an  early  date  l  down  to  the  present  day  without  question;  and  that 
upon  such  a  sub-lease  the  reversion  remains  in  the  owner  of  the 
chattel  real  and  is  a  vested  interest. 

§  807.  III.  Coming  now  to  estates  for  life,  we  find  it  laid  down  that 
there  can  be  no  such  things  in  a  chattel  real;  that  if  a  term  for  years  is 
granted  to  A.  for  life,  A.  takes  the  absolute  interest;  and  that  upon 
A.'s  death  the  term  goes  to  A.'s  executors  or  administrators,  and 
does  not  revert  to  the  grantor.  Why  is  this?  It  is  not  because  you 
cannot  have  a  particular  estate  in  a  chattel  real,  for  we  have  seen 
that  you  can  have  in  a  chattel  real  an  estate  for  years  and  a  vested 
reversion. 

§  808.  The  reason  why  there  could  be  no  estate  or  interest  for 
life  in  a  chattel  real  was  the  technical  one  that  in  the  eye  of  the  law 
a  life  estate  was  greater  than  an  estate  for  years;  and  therefore  as  a 
term  for  years,  even  for  a  thousand  years,  would  merge  in  a  life  estate, 
so  a  grant  of  a  term  for  years  to  one  for  his  lif e  purported  to  carry  some- 
thing which  was  greater  than  a  term  for  years,  and  carried  merely  a 
term  for  years  only,  because  that  was  all  there  was  to  carry,  and  did 
carry  the  whole  term.  Thus  in  Welcden  v.  Elkington: 2  "If  one  who 
has  a  term  for  years  grants  it  to  another  during  his  life,  it  is  as  much  as 
he  had  granted  it  during  all  the  years,  for  the  limitation  for  life  is  as 
great  as  a  limitation  for  all  the  years,  and  comprehends  in  judgment 
of  law  ail  the  years;  for  inasmuch  as  a  time  for  life  is  greater  than  a  time 
for  years,  therefore  the  lesser  is  included  in  the  greater."  So  in  Wood- 
cock v.  Woodcock,  per  Walmsley,  J.: 3  "The  law  will  not  presume  that 
there  should  be  a  continuance  of  the  term  after  the  death  of  the 
daughter." 

§  809.  So,  although  a  term  for  years  may  be  assigned  to  have 
and  to  hold  from  and  after  a  future  time,4  yet  such  a  grant  to  take 

1  2  P.    &   M.  East.   Eng.   Law  on   the    mistaken    analogy   of    a 

(2d.  ed.)  112.  chattel  personal.     On  the   gift  of 

Lord   Mansfield's  statement  in  a   chattel   personal    for   an   hour, 

Wright  d.  Plowden  t>.  Cartwright,  vide  §  824,  post. 
I    Burr.    282,    284,    that    accord-  z  Plowd.  519,  520. 

ing    to    the    old    cases    "the    gift  *  Cro.  El.  795.    See  Chalfont  v. 

of    a    term    (like  any  other  chat-  Okes,  1  Ch.  Gas.  239;  Jermyn  v. 

tel)     for     an     hour,     was     good  Orchard,  Show.  P.  C.  199. 
forever,"  appears  to   be  grounded  4  Per    Anderson,   J.,    arguendo^ 


APPENDIX.  593 

effect  after  the  death  of  the  termor  was  said  to  be  bad.  "And  here- 
upon Popham  said  it  had  been  held,  that  if  one  has  a  lease  for  years 
of  land,  and  grants  to  another  all  his  term  which  should  be  to  come 
at  the  time  of  his  death,  this  grant  is  void,  for  in  that  he  will  hold 
the  term  during  his  own  life,  thereby  he  holds  it  for  a  time,  which  is  as 
long  as  he  has  an  interest  in  the  land,  so  that  there  is  no  certainty 
that  the  term  will  ever  commence,  and  therefore  the  grant  so  made 
is  void.  And  the  Lord  Dyer  in  his  argument  afterwards  affirmed  that 
such  grant  could  not  be  good  to  commence  after  the  death  of  him  who 
had  the  term;  but  he  said  that  in  a  case  which  lately  came  before  the 
Justices  of  the  King's  Bench  upon  a  posted,  where  lessee  for  years 
granted  by  deed  all  his  term  to  another,  habendum  to  the  grantee 
from  the  time  of  the  death  of  the  grantor,  it  was  adjudged  that  the 
habendum  was  void,  and  that  the  term  passed  presently,  because  the 
premises  of  the  deed  and  the  habendum  could  not  stand  together;  for 
by  the  premises  of  the  deed  the  term  was  granted  presently,  and  then 
the  habendum,  which  would  make  the  term  commence  after  death, 
was  inconsistent  with  the  premises,  and  could  not  make  any  inter- 
est to  pass,  because  the  time  when  it  should  pass  was  thereby  made 
incertain;  for  by  the  habendum  the  grantor  intended  to  reserve  to 
himself  the  estate  or  interest  as  long  as  he  should  live,  and  that  the 
years  which  were  to  come  after  his  death  should  pass,  which  could 
not  be,  because,  when  he  reserved  it  for  his  life,  therein  he  reserved 
it  for  all  the  term  which  he  had,  for  a  tune  for  life  is  greater  than  a 
time  for  years;  and  therefore,  inasmuch  as  the  habendum  and  the 
premises  could  not  stand  together,  the  court  adjudged  that  the  term 
passed  by  the  premises  of  the  deed,  rather  than  the  habendum  should 
destroy  the  whole.  But  in  the  other  case,  where  lessee  for  years,  with- 
out any  habendum,  grants  to  another  all  his  term  which  shall  be  to 
come  at  the  time  of  his  death,  the  whole  shall  be  totally  void,  be- 
cause it  is  but  one  entire  sentence."  l 

§  810.  But  in  Rayman  v.  Gold 2  it  was  said  that  a  man  could  either 
demise  or  devise  a  term  to  have  and  to  hold  after  the  death  of  a  stran- 
ger who  took  no  interest  in  the  estate. 

§  811.   The  difference  between  the  two  cases  is  this:  In  the  first 

in  Welcden  v.   Elkington,   Plowd.  l  Welcden  v.  Elkington,  Plowd. 

519,  524.  519,  520.    See  Anon.,  1  And.  122. 

*  Moore,  635. 


594  THE   RULE   AGAINST   PERPETUITIES. 

case  there  was  reserved  an  estate  for  life  in  the  tennor;  and  as,  by 
the  presumption  of  law,  an  estate  for  life  cannot  be  less  than  an  es- 
tate for  years,  the  whole  interest  was  in  the  termor;  but  in  the  second 
case,  although  by  presumption  of  law  a  life  estate  is  greater  than  an 
estate  for  years,  yet  there  is  no  presumption  that  a  certain  man 
might  not  die  within  a  term,  and  therefore  in  the  second  case  the 
demise  or  devise  was  good.  Mr.  Preston  seems  to  have  overlooked 
this  distinction.1 

§  812.  So  far  as  transfers  inter  vivos  are  concerned,  the  law  of 
England  has  remained  in  this  condition  down  to  the  present  day.2 
The  only  thing  to  the  contrary  is  the  ambiguous  remark  in  Butt's 
Case: 3  "So  if  the  lessee  for  years  grants  the  carve  of  land  to  another 
for  the  term  of  his  life,  he  hath  the  whole  term  if  he  live  so  long,  as 
well  as  in  the  case  of  a  devise."  4 

§  813.  But  from  an  early  period,  upon  the  devise  of  a  term  to 
one  for  life,  and  upon  his  death  to  B.,  the  devise  to  B.  was  held  good. 
The  first  suggestion  that  this  might  be  done  was  in  1535; 5  but  the 
point  was  first  distinctly  held  in  Welcden  v.  Elkington.*  This  decision 
was,  upon  the  whole,  followed,  but  there  were  judgments  and  dicta 
the  other  way,  notably  in  Woodcock  v.  Woodcock,7  until  in  Manning's 
Case,8  and  Lampet's  Case,9  the  validity  of  such  devises  over  was  set- 
tled.10 What  was  the  theory  upon  which  the  court  went  in  allowing 
these  future  devises  of  estates  for  years? 

§  814.  It  was  at  first  suggested  that  there  might  be  a  difference 
between  those  cases  where  the  term  itself  was  given  for  life,  and 
those  cases  where  the  use  and  occupation  of  the  term  were  given, 
but  this  distinction  was  emphatically  negatived  in  Manning's  Case. 

§  815.  The  theory  adopted  was  this:  To  carry  out  the  intention 
of  the  testator,  the  apparent  order  of  the  limitations  was  reversed. 

1  2  Prest.  Aba.  6,  144;  and  cf.  as  in  that  case,  the  courts  have 

Lewis,  Perp.  93,  94.  been  astute  to   construe   deeds  so 

1  See,  however,  §  820,  infra.  as  to  avoid  the  application  of  the 

•  7  Co.  23  a.  doctrine. 

4  "When    they    [future    limita-  5  Anon.,  Dyer,  7  a. 

tions  of  terms]  came  to  be  allowed  '  Plowd.  519;  Dyer,  358  6. 

by  will,  or  by  declaration  of  trust,  7  Cro.  El.  795. 

the  substantial  reason  was  the  same  8  8  Co.  94  6. 

for  allowing  them  by  deed"     Per  •  10  Co.  46  6. 

Lord  Mansfield,  C.  J.,  in  Wright  10  See   ante,    §§  149-152.     Cf.  2 

v.  Cartwright,   1   Burr.   282;  and,  Harg.  Jurid.  Arg.  41,  42. 


APPENDIX.  595 

If  a  term  was  devised  to  A.  for  life,  and  on  A.'s  death  to  B.,  this 
was  considered  as,  first,  a  gift  of  the  term  to  B.  after  the  death  of 
A.  (which,  as  we  have  seen,  is  good),  and  then  a  gift  of  what  remained 
to  A.;  that  is,  B.  had  an  executory  devise  and  A.  the  whole  estate,  sub- 
ject to  the  executory  devise.  "And  inasmuch  as  the  intent  of  the 
testator  is  evident  by  these  words,  it  is  the  office  of  the  court,  as 
Anderson  and  Manwood  said  (and  as  Mounson  Justice,  also  after- 
wards said  to  me)  so  to  marshal  and  construe  the  words  that  the  in- 
tent may  take  place,  and  the  end  be  effected,  and  not  destroyed,  if 
any  sense  at  all  can  be  made  of  them  by  law.  Then  here  it  appears 
to  the  court  that  the  lease  was  made  for  sixty  years  from  the  feast  of 
the  Annunciation  of  our  Lady  in  anno  35  H.  8,  so  that  the  lease  would 
end  in  the  year  of  our  Lord  1604.  And  it  was  the  will  of  the  testator 
that  his  wife  should  have  the  land  for  so  many  of  the  years  as  she  should 
live,  and  no  longer,  and  that  his  son  should  have  the  residue.  Then, 
in  order  to  set  the  estates  devised  in  a  clear  light,  and  to  make  them 
stand  with  the  law,  suppose  that  the  estate  limited  to  the  son  had 
been  first  expressed,  and  the  wife's  estate  last,  as  if  he  had  devised 
that  the  son  should  have  the  land  from  the  death  of  his  wife  unto  the 
end  of  the  term  or  unto  the  Annunication  of  our  Lady  in  the  year  of  our 
Lord  1604,  and  suppose  further  that  he  had  devised  the  land  to  his  wife 
during  her  life,  would  not  this  form  of  words  have  served  the  turn 
of  both  the  wife  and  the  son?  And  would  not  the  law  have  warranted 
every  part  of  this  devise?  Most  certainly  it  would.  And,  Sir,  so  much 
is  done  in  the  present  devise  of  the  testator,  for  his  devise  is  hi  sub- 
stance to  that  purpose,  and  his  words  amount  to  as  much.  And  it  is 
the  office  of  the  court  to  adjudge  what  part  of  the  sentence  precedes 
and  what  follows,  and  they  ought  so  to  place  them  that  the  one  part 
may  not  destroy  the  other,  but  that  each  may  stand  together.  .  .  . 

"Wherefore,  inasmuch  as  the  intent  is  the  principal  point  to  be 
considered  hi  wills,  and  the  words  ought  to  be  construed  and  ap- 
plied so  as  to  perform  that  intent,  it  is  reasonable,  and  the  office  of 
the  judges,  to  make  such  exposition  of  the  words  in  the  present  case, 
as  is  agreeable  to  the  intent  of  the  testator,  and  consistent  with  the 
law  of  the  realm,  and  that  is,  to  construe  the  latter  devise  to  the 
son  to  precede  the  former  devise  to  the  wife,  which  exposition  is 
consonant  to  law  and  equity."  1 

1  Welcden  v.  Elkington,  Plowd.  522. 


596  THE  RULE   AGAINST  PERPETUITIES. 

"So  in  the  case  at  bar,  when  the  wife  dies  it  shall  vest  in  Matthew 
Manning  as  by  an  executory  devise,  as  if  he  had  devised  that  after 
a  son  has  paid  such  a  sum  to  his  executors,  that  he  shall  have  his 
term;  or  that  after  the  death  of  A.  that  B.  shall  have  the  term;  or 
that  after  his  son  shall  return  from  beyond  the  seas,  or  that  A.  dies, 
that  he  shall  have  it,  in  all  these  cases  and  other  like,  upon  the  con- 
dition or  contingent  performed,  the  devise  is  good,  and  in  the  mean 
time  the  testator  may  dispose  of  it;  and  therefore  in  judgment  of 
law  ut  res  magis  valeat,  the  executory  devise  shall  precede,  and  the 
disposition  of  the  lease,  till  the  contingent  happen,  shall  be  subsequent, 
as  in  the  case  at  bar  it  was,  and  so  all  shall  well  stand  together;  for 
when  he  made  the  executory  devise,  he  had  a  lawful  power,  and  might 
well  make  it;  and  afterwards  in  the  same  will  he  had  lawful  power,  and 
might  well  devise  the  lease  till  the  contingent  happened,  and  therefore 
it  is  as  much  as  if  the  testator  had  devised,  that  if  his  wife  died  within 
the  term,  that  then  Matthew  Manning  should  have  the  residue  of 
the  term;  and  farther  devised  it  to  his  wife  for  her  life."  1 

§  816.  As  we  shall  see,  in  the  United  States  future  limitations 
of  chattels  personal  can  generally  be  created  by  deed  as  well  as  by 
will,  and  it  seems  probable  that  the  same  extension  would  be  allowed 
with  chattels  real.  But  there  is  no  decision  precisely  in  point,  al- 
though in  Maryland  it  has  been  held  in  two  cases  that  future  limi- 
tations of  leaseholds  renewable  forever  are  good; 2  and  in  the  latter 
case  the  general  question  is  discussed,  and  the  conclusion  reached 
that  future  limitations  of  ordinary  terms  for  years  can  be  created  in 
this  country  as  well  by  deed  as  by  devise. 

§  817.  Assuming,  then,  that  if,  in  England  by  will,  and  in  the 
United  States  by  deed  or  will,  a  chattel  real  is  given  to  A.  for  life, 
and  on  his  death  to  B.,  B.  takes  a  good  legal  estate,  what  is  its  char- 
acter? Is  it  in  the  nature  of  a  vested  remainder  of  realty  after  a  life 
estate,  or  is  it  in  the  nature  of  an  executory  devise  after  an  absolute 
interest?  We  have  seen  that  the  latter  is  the  theory  of  Manning's 
Case,  and  the  older  authorities.  For  most  purposes  this  question  is 
of  no  importance.  B.  has  a  good  legal  interest,  and  that  is  enough; 
but  there  are  two  classes  of  cases  where  the  question  becomes  a 
serious  one. 

1  Manning's   Case,  8  Co.  95  a.  *  Arthur  v.  Cole,   56   Md.   100. 

See  Fearne,  C.  R.  402,  403;  Lewis,      Culbreth  v.  Smith,  69  Md.  450. 
Perp.  87. 


APPENDIX.  597 

§  818.  First.  Suppose  a  term  is  devised  to  A.,  who  is  now  a  bachelor, 
for  life,  on  his  death  to  A.'s  eldest  son  for  life,  and  on  the  death  of 
such  eldest  son  to  A.'s  other  children  absolutely.  Here,  had  the 
subject  of  the  devise  been  a  fee  instead  of  a  chattel  real,  the  gift  to 
A.'s  eldest  son  for  life  and  the  gifts  in  remainder  to  A.'s  other  children 
would  all  have  vested  in  the  lifetime  of  A.,  and  so  none  of  them  would 
have  been  bad  for  remoteness.  If,  therefore,  upon  this  devise  of  a 
term  the  estates  for  life  are  really  life  estates,  then  the  final  limita- 
tion to  A.'s  younger  children  is  vested  and  good.  But  if  what  purport 
to  be  life  estates  in  the  term  are  really  absolute  interests,  then  the 
final  limitation  is  an  executory  devise,  which  does  not  vest  until  it 
comes  into  possession,  and  is  therefore  too  remote. 

§  819.  Second.  Suppose  a  term  is  devised  to  A.  for  life,  and  there 
is  no  devise  over.  If  A.'s  estate  is  really  a  life  estate,  then  there  is  a 
reversion  in  the  executor  of  the  testator,  and  upon  A.'s  death  the 
term  passes  to  such  executor;  but  if  A.'s  estate  is  really  absolute, 
then,  as  there  is  no  gift  over,  the  term,  upon  A.'s  death,  will  pass  to 
A.'s  executor. 

§  820.  The  theory  of  the  old  cases,  based  on  the  doctrine  that 
there  can  be  no  life  estate  in  a  term,  would  require  us  to  hold,  in 
the  first  case,  that  the  devise  to  A.'s  younger  children  was  too  re- 
mote, and,  in  the  second  case,  that  the  term  would  pass  to  A.'s  exec- 
utor and  not  to  the  executor  of  the  testator.  I  am  not  aware  that 
the  first  of  these  questions  has  actually  arisen  either  in  this  country 
or  in  England.  The  second  question  has  arisen  in  one  case,  Eyres 
v.  Faulkland,1  and  in  this,  contrary  to  what  doctrine  seems  to  demand, 
there  was  held  to  be  a  reversion  to  the  executor  of  the  testator.2 
Whether  it  is  worth  while  to  preserve  this  doctrine  will  be  consid- 
ered after  dealing  with  the  law  as  to  future  limitations  of  chattels 
personal. 

§  821.  The  early  law  of  chattels  personal,  and  particularly  the 

1  1  Salk.  231.  personal  representatives  of  the  tes- 

2  "The  disposition  of  a  term  to  tator."      Per    Lord   Ellenborough, 
one  for  life,  with  a  remainder  over,  C.  J.,  Doe  d.  Everett  v.  Cooke,  7 
will  in  general  entitle  the  first  de-  East,  269,  274.    And  see  Lord  St. 
visee  to  no  greater  interest  than  an  Leonards,  C.,  in  Ker  v .  Dungannon, 
estate  for  his  life,  if  the  remainder  1  Dr.  &  W.  509,  528;  and  Wain- 
should   not   take   effect,    and   the  man  v.  Field,  Kay,  507,  515. 
residue  of  the  term  will  go  to  the 


598  THE   RULE   AGAINST  PERPETUITIES. 

question  when  and  how  far  property  was  recognized  in  them  apart 
from  possession,  has  been  discussed  by  Professor  Maitland  and 
Professor  Ames  in  their  invaluable  articles  on  the  seisin  and  dis- 
seisin of  chattels.1  I  shall  not  wander  into  this  attractive  field,  but 
start  with  the  fifteenth  century.  I  suppose  it  will  be  generally  con- 
ceded that  at  that  time  the  ideas  of  possession  and  of  property  were 
so  far  distinguished  that  the  owner  of  goods  who  had  bailed  them  to 
A.  would  be  considered  as  still  having  the  property  in  them,  although 
they  were  in  A.'s  possession. 

§  822.  There  was  no  tenure,  and  there  were  no  estates,  in  chat- 
tels personal;  absolute  property  was  the  only  kind  of  property  rec- 
ognized. In  Bro.  Ab.  Devise,  13,  it  is  said,  "gift  or  devise  of  a 
chattel  for  an  hour  is  forever."  Professor  Ames  has  some  interesting 
remarks  on  this  point:  — 

"If  a  chattel,  real  or  personal,  was  granted  or  bequeathed  to 
one  for  life,  the  grantee  or  legatee  became  not  only  tenant  for  life, 
but  absolute  owner  of  it.  In  other  words,  there  could  be  no  rever- 
sion or  remainder  in  a  chattel.  Possibly  others  may  have  been  as 
much  perplexed  as  the  present  writer  in  seeking  for  the  reason  of  this 
rule.  The  explanation  is,  however,  simple.  The  common-law  pro- 
cedure, established  when  such  limitations  of  chattels  were  either  un- 
known or  extremely  rare,  gave  the  reversioner  and  remainder-man  no 
remedy  against  the  life  tenant.  There  was  no  action  for  chattels  cor- 
responding to  the  formedon  in  reverter  and  remainder  for  land.  Det- 
inue would,  of  course,  lie  in  general  on  a  contract  of  bailment;  but  the 
contract  of  bailment,  like  a  contract  for  the  payment  of  money,  must 
be  conceivably  performable  by  the  obligor  himself,  and  there- 
fore before  his  death;  he  could  not  create  a  duty  binding  only  his 
executor.  Consequently,  there  being  no  right  of  action  against  him, 
the  life  tenant's  power  of  enjoyment  was  unrestricted.  His  owner- 
ship was  necessarily  absolute."  2 

§  823.   There  are  three  difficulties  in  accepting  this  explanation. 

First.  It  does  not  meet  the  case  just  cited  of  the  gift  of  a  chat- 
tel for  an  hour;  a  contract  of  bailment  for  an  hour  is  performable 
by  the  obligor. 

Second.  By  the  end  of  the  fourteenth  century,  detinue  could  be 
maintained  for  a  wrongful  detention  apart  from  contract. 

1  1    Law    Quart.   Rev.   324;    3  *  3  Harv.  Law  Rev.  315. 

Harv.  Law  Rev.  23,  313,  337. 


APPENDIX.  599 

Third.  In  1459 1  a  bailment  for  life  was  recognized  as  valid. 

§  824.  The  reason  why  a  gift  of  a  chattel  personal  for  an  hour 
carried  the  absolute  property  was,  it  is  submitted,  that,  executory 
interests  not  yet  having  been  conceived  of,  property  carried  with  it 
the  absolute  indefeasible  power  of  alienation  or  destruction,  and 
one  who  had  this  power  for  a  moment  gained  the  complete  con- 
trol. We  have  a  perfect  instance  of  the  survival  of  this  doctrine  in 
the  modern  law  on  consumable  articles.  If  a  cellar  of  wine  is  be- 
queathed to  A.  for  life  or  for  a  year,  he  has  the  absolute  interest, 
for  there  is  no  restraint  on  his  power  to  drink  or  waste  it. 

§  825.  But  although  property  in  chattels  personal  was  always 
absolute,  the  use  and  occupation  of  them  might  be  given  to  another 
than  the  one  who  had  the  property.  Such  gifts  were  generally  for 
years  or  at  will;  they  probably  could  not  be  given  to  a  man  and  those 
succeeding  him  on  his  death.2 

§  826.  Could  there  be  a  bailment  of  goods  giving  the  bailee  the 
use  and  occupation  of  them  for  life?  There  was  certainly  no  prin- 
ciple of  law  against  a  bailment  for  life,  and  in  the  first  case  that  has 
yet  been  discovered  on  the  question,  the  validity  of  such  a  bailment 
is  distinctly  recognized.  In  the  Year  Book  of  37  Henry  VI.  30  (1459), 
a  testator  made  A.  and  B.  his  executors,  and  bequeathed  a  graile  or 
mass-book  to  B.  to  have  and  use  for  the  term  of  his  life,  and  after 
his  death  the  remainder  to  A.  in  the  same  manner  for  the  term  of  his 
life,  and  after  his  death  the  remainder  to  the  parishioners  of  a  church 
forever.  The  Court  of  Common  Pleas  held  that  the  property  was 
"not  in  the  devisees,  for  they  will  have  only  the  occupation  and  '  ma- 
nurance '  for  term  of  their  two  lives  and  so  no  property  in  them." 
Bro.  Ab.  Devise,  13,  under  this  case,  says:  "It  is  agreed  in  the  tune 
of  Henry  VIII.  and  Edward  VI.,  to  be  good  law  that  the  occupation 
can  so  remain;  but  if  the  thing  itself  had  been  devised  to  the  use  [al 
use]  the  remainder  is  void,  for  a  gift  or  devise  of  a  chattel  for  an 
hour  is  forever,  and  the  donee  or  devisee  can  give,  sell,  and  dispose 
of  it,  and  the  remainder  dependent  on  it  is  void,  which  note  for  it  is 
'valde  bone  diversities"  3  That  is:  no  legal  property  could  be  created 

1  37  Hen.  VI.  30;  §  826,  post.  s  See    Welcden     v.     Elkington, 

1  See,  however,    Anon.,    Owen,      Dyer,    358  b,    359  a;    Plowd.    519, 

33.  521,    522;    Paramour   v.    Yardley, 

Plowd.  539,  542. 


600  THE   RULE   AGAINST   PERPETUITIES. 

in  a  chattel  personal  other  than  an  absolute  interest,  but  by  the  bail- 
ment of  such  a  chattel  to  A.  the  use  or  occupation  might  be  given  to 
A.  for  life,  and  although  A.  thereby  acquired  no  property,  he  yet 
gained  a  right  of  possession. 

§  827.  The  doctrine  as  then  held  is  set  forth  in  a  decision  of  the 
Court  of  Common  Pleas:  "A  prohibition  was  prayed  unto  the  Council 
of  the  Marches  of  Wales,  and  the  case  was  thus:  A  man  being  possessed 
of  certain  goods,  devised  them  by  his  will  unto  his  wife  for  her  life,  and 
after  her  decease  to  J.  S.,  and  died.  J.  S.  in  the  life  of  the  wife  did 
commence  suit  in  the  Court  of  Equity,  there  to  secure  his  interest  in 
remainder,  and  thereupon  this  prohibition  was  prayed.  And  the 
Justices,  viz.  Banks,  Chief  Justice,  Crawley,  Foster  (Reeve  being 
absent),  upon  consideration  of  the  point  before  them,  did  grant  a  pro- 
hibition, and  the  reason  was  because  the  devise  in  the  remainder  of 
goods  was  void,  and  therefore  no  remedy  in  equity,  for  dZquitas 
sequitur  legem.  And  the  Chief  Justice  took  the  difference  as  in  37  H. 
6.  30,  Br.  Devise,  13,  and  Com.  Welkden  &  Elkington's  Case,  betwixt 
the  devise  of  the  use  and  occupation  of  goods,  and  the  devise  of  goods 
themselves.  For  where  the  goods  themselves  are  devised,  there  can 
be  no  remainder  over;  otherwise,  where  the  use  or  occupation  only  is 
devised.  It  is  true  that  heirlooms  shall  descend,  but  that  is  by  custom 
and  continuance  of  them,  and  also  it  is  true  that  the  devise  of  the  use 
and  occupation  of  land  is  a  devise  of  the  land  itself,  but  not  so  in  case 
of  goods,  for  one  may  have  the  occupation  of  the  goods  and  another 
the  interest,  and  so  it  is  where  a  man  pawns  goods  and  the  like. 
For  which  cause  the  Court  all  agreed  that  a  prohibition  should  be 
awarded."  1 

§  828.  But  by  a  series  of  decisions  in  the  seventeenth  century 
the  severity  of  this  distinction  was  relaxed,  and  it  was  held  that  if 
a  chattel  personal  be  bequeathed  to  A.  for  life  and  on  A.'s  death  to 
B.,  the  bequest  to  A.  will  be  construed  as  a  bequest  of  only  the  use 
and  occupation  to  him;  that  he  will  have  the  possession;  but  that 
the  property  will  be  in  B.2  And  it  is  now  settled  in  England  that  if 

1  Anon.,  March,  106  (1641).  Wms.  6,  note  (1690).     Clarges  v. 

1  Vachel  v.  Vachel,  1  Ch.  Gas.  Albemarle,  2  Vern.  245  (1691). 

129(1669).  Catchmay  v.  Nicholas,  Anon.,  Freem.  Ch.  206  (1695). 

Gas.  temp.  Finch,  116  (1673).  Hyde  v.  Parrat,  1  P.  Wms.  1;  2 

Smith  v.  Clever,  2  Vern.  38,  59  Vern.  331  (1695).  Tissen  v.  Tissen, 

(1688).  Shirley  v.  Ferrers,  1  P.  1  P.  Wms.  500  (1718).  See  Randall 


APPENDIX.  601 

a  chattel  personal  is  bequeathed  to  A.  for  life,  and  on  his  death  to 
B.,  B.  has  a  legal  property  interest.1 

§  829.  It  seems  to  be  the  common  notion  in  England  that  a  legal 
interest  in  chattels  personal  after  a  gift  of  them  to  another  for  his  life 
can  be  created  only  by  will,  and  not  by  a  deed  or  other  instrument 
operating  inter  vivos,  and  consequently,  when  it  is  desirable  to  make 
such  limitations,  the  legal  title  is  vested  in  trustees.2  A  court  may 
lend  itself  to  construe  a  gift  of  a  chattel  for  life  as  a  gift  of  the  use  of 
the  chattel  for  life,  with  greater  ease  in  a  will  than  hi  a  deed,  although 
this  seems  to  be  at  the  present  day  undesirable;  but  where  the  gift 
by  deed  is  expressly  of  the  use  and  occupation  of  a  chattel  to  A.  for  his 
life  and  on  his  death  the  chattel  to  belong  to  B.,  there  appears  to  be 
no  reason  why  the  gift  should  not  take  effect  according  to  its  terms. 
Undoubtedly,  as  has  been  said,  the  idea  seems  to  prevail  among  the 
profession  in  England  that  the  gift  by  deed  to  B.  would  be  void,  but 
there  is,  it  is  believed,  no  decision  or  authoritative  dictum  to  that 
effect,  and  Blackstone's  authority  is  flat  to  the  contrary.  He  says,3 
"If  a  man  either  by  deed  or  will  limits  his  books  or  furniture  to  A.  for 
life,  with  remainder  over  to  B.,  this  remainder  is  good."  And,  as 
we  shall  see,  Blackstone's  opinion,  which  I  submit  is  sound  on 
principle,  has  been  all  but  universally  adopted  in  America. 

§  830.  The  theory  that  if  a  chattel  personal  is  bequeathed  to  A. 
for  life  and  on  his  death  to  B.,  A.  has  the  use  and  occupation,  and 
B.  the  immediate  property,  subject  only  to  such  use  and  occupation 
in  A.,  seems  to  be  the  doctrine  of  the  cases  cited.  This  is  clearly 
the  doctrine  in  the  case  of  the  Graile  and  in  both  the  cases  from 
Plowden,  as  the  passages  cited  above  show.  So  in  Vachel  v.  Vachel* 
where  certain  "rarities"  were  given  to  Rebecca  Vachel  for  life  and 
on  her  death  to  remain  to  the  use  of  Thomas  Vachel,  Lord  Keeper 
Bridgman  held  Rebecca  "ought  only  to  have  the  use  of  the  said 
rarities  during  her  lif e  only,  and  [Thomas]  is  to  have  the  same  after  her 
death."  In  Hyde  v.  Parrot5  Lord  Keeper  Somers,  "on  the  strength 
and  authority  of  the  late  precedents,  which  had  followed  the  civil  and 


».  Russell,  3  Mer.  190,  195;  Hoare          3  2  Bl.  Com.  398. 
v.  Parker,  2  T.  R.  376;  §  84,  ante.  *  1  Ch.  Gas.  129. 

1  See  §  84,  ante.  *  1  P.  Wms.  1,  6. 

1  Wms.  Pere.  Prop.  (17th  ed.) 
396. 


602  THE   RULE   AGAINST  PERPETUITIES. 

canon  laws,  in  construing  the  use  of  the  thing,  and  not  the  thing  itself 
to  pass,  where  the  first  devise  is  for  a  limited  time,  in  order  the  better 
to  comply  with  the  intention  of  the  testator,  allowed  the  devise  over 
to  be  good."  So  in  Tissen  v.  Tissen.1  "Anciently  the  notions  were 
that  a  personal  thing  given  to  one  for  life,  or  even  for  a  day,  was  a 
gift  forever,  and  would  not  bear  a  limitation  over;  but  the  construc- 
tion has  since  been  that  such  devise  passes  only  the  use  and  profits 
and  not  the  thing  itself,  and  so  it  is  made  good  that  way."  And  in 
Randall  v.  Russell,2  "a  gift  for  life  of  a  chattel  is  now  construed  to  be 
a  gift  of  the  usufruct  only." 

§  831.  But  although  there  seems  to  have  been  no  judicial  authority 
for  holding  that  one  to  whom  the  use  and  occupation  of  a  chattel  per- 
sonal has  been  bequeathed  has  the  absolute  property  at  Common 
Law,  yet  undoubtedly,  of  late  years,  English  text-writers  have  said 
that  upon  the  bequest  of  a  chattel  personal  to  A.  for  Me  and  on  his 
death  to  B.,  A.  takes  the  absolute  property,  and  B.  has  not  a  vested 
interest  but  an  executory  bequest.3  This  has  been  the  common  view. 
I  adopted  it  in  the  first  edition  of  this  book.4 

§  832.  There  can  be  no  doubt,  I  think,  that  this  notion  arose  from 
overlooking  the  distinction  between  chattels  real  and  personal.  There 
is  a  legal  presumption  that  a  life  estate  is  larger  than  any  term  for  years, 
but  there  is  no  legal  presumption  that  an  interest  for  life  in  a  picture 
will  last  longer  than  the  picture  itself.  And,  further,  there  can  be  no 
bailment  of  land,  while  there  can  be  bailment  of  a  chattel.6 

§  833.  I  have  succeeded  in  finding  but  one  case  in  which  this 
comparatively  modern  doctrine  has  received  judicial  recognition  in 
England.  Re  Tritton,  ex  parte  Singkton,6  was  a  case  in  bankruptcy 
before  Wills,  J.  A  testator  gave  to  his  wife  "the  right  of  possession  and 
enjoyment  of  all  my  pictures  during  her  life  (if  she  shall  so  desire), 
and  subject  as  aforesaid  I  give  and  bequeath  all  my  said  pictures  to 
and  for  my  son  H.  J.  Tritton,  for  his  own  absolute  use  and  benefit." 
The  widow  was  still  alive,  the  son  assigned  his  interest  under  his 
father's  will,  and  subsequently  became  bankrupt.  The  trustee  in 
bankruptcy  contended  that  the  assignment  was  a  bill  of  sale,  and  void 

1  1  P.  Wms.  500.  «  §  89,  note. 

1  3  Mer.  190,  195.  s  See  18  Jurid.  Rev.  133. 

1  Fearne,    C.    R.    402,   Butler's  •  Reported  61  L.  T.  301,  and 

note;  Lewis,  Perp.  97;  Wms.  Pers.  more  fully  in  6  Morell,  250. 
Prop.  (17th  ed.)  394. 


APPENDIX.  603 

as  not  having  been  registered.  The  judge  held  that  the  son's  interest 
was  a  chose  in  action  which  was  excepted  from  the  Bills  of  Sale  Acts. 
He  said:  "It  is  clear  upon  the  authorities  that  there  cannot  be  life 
estates  and  remainders  of  personal  chattels.  The  interest  which  Mrs. 
Tritton  took  was  definite,  and  it  came  first,  and  entitled  her  to  the 
enjoyment  and  possession  of  these  things  —  that  was  to  the  prop- 
erty in  them  during  her  lifetime.  The  son's  interest  was  an  executory 
bequest,  which  created  no  present  or  vested  interest,  and  which, 
if  the  mother  survived  him,  would  never  come  into  operation." 
None  of  the  authorities  which  appear  in  either  of  the  reports  to  have 
been  cited  by  the  counsel  bear  upon  the  matter,  except  the  passage 
in  1  Jarm.  Wills  (4th  ed.)  879.1 

§  834.  Having  stated  the  old  and  the  modern  English  theory 
with  regard  to  chattels  personal,  let  us  now  consider  the  nature  of 
present  and  future  interests  in  such  chattels  in  the  light  of  those 
theories.  And,  as  we  did  with  chattels  real,  let  us  take  up  those 
cases,  first,  where  the  first  gift  is  to  A.  and  his  executors;  secondly, 
where  the  first  gift  is  to  A.  for  years;  thirdly,  where  the  first  gift  is 
to  A.  for  life. 

§  835.  I.  A  chattel  personal  is  bequeathed  to  A.  and  his  execu- 
tors. A.  has  undoubtedly  here  not  only  the  possession  but  the  prop- 
erty. As  words  of  limitation  are  unnecessary  to  give  an  absolute 
interest  in  personalty,  a  gift  to  A.  is  equivalent  to  a  gift  to  A.  and  his 
executors,  unless  the  context  shows  that  it  is  intended  to  give  a  less 
interest.  If,  then,  after  a  bequest  to  A.  and  his  executors  there  is  a 
future  gift  over  to  B.,  such  gift  must  be  an  executory  bequest,  and 
cannot  be  considered  a  vested  interest  until  there  is  a  right  to  imme- 
diate possession.  The  consideration  of  the  two  theories  we  have  been 
discussing  does  not  affect  this  class  of  cases.  If  there  is  no  present 
bequest,  but  only  a  future  bequest,  then  if  no  present  gift  is  raised  by 
implication,  the  property  vests  immediately  hi  the  next  of  kin  or 
residuary  legatees,  and  the  future  bequest  is  an  executory  bequest. 

§  836.  II.  A  bequest  to  A.  for  years.  Here  is  a  bailment  to  A. 
A.  has  the  possession,  the  use  and  occupation,  but  not  the  prop- 
erty. If  there  is  a  bequest  to  B.  subject  to  this  bailment,  B.  has 
the  property  and  has  a  vested  interest.  If  there  is  no  such  bequest 

1  See  In  re  Thynne,  [1911]  1  Ch.  282,  where  the  property  was  in  a 
trustee. 


604  THE  RULE  AGAINST  PERPETUITIES. 

to  B.,  then  the  property  remains  in  the  testator  or  his  next  of  kin  or 
residuary  legatees,  and  he  or  they  have  a  vested  interest.  In  this 
class  of  cases,  also,  the  adoption  of  the  one  or  the  other  of  the  theories 
is  immaterial.  I  do  not  think  that  any  one  at  the  present  day  would 
say  (unless  as  to  consumable  chattels)  that  A.  in  a  case  of  this  kind 
had  the  property  and  B.  an  executory  interest. 

§  837.  III.  A  bequest  of  a  chattel  personal  to  A.  for  life,  and 
on  his  death  to  B.  It  is  in  this  class  of  cases  that  the  adoption  of 
the  one  or  of  the  other  theory  becomes  significant.  According  to 
the  old  theory,  A.  has  the  possession,  the  use  and  occupation  only, 
and  B.  has  the  property  and  an  immediate  vested  interest.  Accord- 
ing to  the  modern  English  doctrine,  A.  has  the  absolute  legal  property 
in  the  chattel,  with  an  executory  bequest  over  to  B.,  which  becomes 
a  vested  interest  only  upon  the  death  of  A.1  Whether  B.'s  interest 
be  an  executory  bequest,  or  whether  it  be  a  vested  interest,  which 
may  properly  be  called  a  quasi  vested  remainder,  it  is  a  legal  interest, 
and  beyond  the  control  of  A.,  so  that  it  is  for  most  questions  imma- 
terial which  theory  is  adopted,  and  this  explains  why  the  law  has 
remained  so  long  in  an  unsettled  condition. 

§  838.  But,  as  in  the  case  of  chattels  real,  there  are  two  questions 
in  which  the  character  of  future  interests  in  chattels  personal  deter- 
mines the  decision:  First.  Suppose  a  chattel  personal  is  bequeathed 
to  A.  for  life,  and  on  his  death  to  A.'s  eldest  son  for  life,  and  on  the 
death  of  such  eldest  son  to  A.'s  other  children  and  their  respective 
executors  as  tenants  in  common.  A.  is  at  present  a  bachelor. 

§  839.  Here,  on  the  old  theory,  first  A.  and  then  his  eldest  son 
have  the  possession,  use,  and  occupation,  and  the  other  children, 

1  Suppose  the  use  and  occupa-  been  held  by  many  learned  writers 

tion  of  a  chattel  personal  is  be-  that  the  fee  is  in  the  testator's  heirs, 

queathed  to  A.  for  his  life,  and  on  If  this  be  the  correct  view,  as  it 

his  death,  if  he  leaves  children,  the  probably  is  (see,  ante,  §  11),  it  rests 

chattel  to  go  to  them,  but  if   he  upon  the  idea  that  the  fee  must 

leaves  no  children,  to  go  to  B.    In  be  somewhere;  but  there  seems  no 

this  case,  the  interests  of  the  chil-  technical  necessity  that  every  chat- 

dren  and  of  B.  are  both  contingent,  tel  personal  should  always  have  an 

none  of  them  have  a  vested  in-  owner,  and  therefore  it  is  best  and 

terest.    On  the  old  theory,  during  most  natural  to  say  that  during  the 

the  lifetime  of  A.  has  any  one  prop-  life  of  A.  no  one  has  property  in  the 

erty  in  the  chattel?    In  the  case  of  chattel, 
such  a  limitation  of  realty,  it  has 


APPENDIX.  605 

as  fast  as  they  are  born,  acquire  vested  interests  in  the  property. 
The  bequest  to  A.'s  other  children  is  good,  for  they  must  all  be  born 
and  their  interests  vest  in  A.'s  lifetime,  and  consequently  the  gift  to 
them  will  not  be  too  remote. 

§  840.  But,  on  the  modern  English  theory,  A.  and  A.'s  eldest 
son  will  each  hold  the  property  in  succession,  and  the  younger  chil- 
dren will  have  an  executory  bequest  not  vesting  until  they  have  an 
immediate  right  to  possession;  this  will  not  be  till  the  death  of  A.'s 
eldest  son,  which  may  be  more  than  twenty-one  years  after  the  death 
of  A.,  whose  was  the  only  life  in  being  at  the  testator's  death.  Con- 
sequently the  bequest  to  A.'s  younger  children  is  void  as  violating 
the  Rule  against  Perpetuities.  Mr.  Marsden,  in  his  Treatise  on  the 
Rule  against  Perpetuities,1  adopts  this  latter  view. 

§  841.  So  far  as  authority  goes,  the  English  decisions  are  all  in 
favor  of  the  former  view.2  In  each  of  them  the  ultimate  interest 
in  personalty  after  the  death  of  an  unborn  person  was  considered 
vested  and  not  too  remote.  In  Evans  v.  Walker  the  interest  was 
legal;  in  the  other  two  it  was  equitable.  But,  in  considering  whether 
a  limitation  is  vested  or  not,  the  same  rules  apply  in  equity  as 
at  law. 

§  842.  Second.  Suppose  chattels  personal  are  bequeathed  to  A. 
for  life,  and  there  is  no  gift  over.  Here,  according  to  the  old  theory, 
there  is  a  reversionary  vested  interest  in  the  next  of  kin  or  residuary 
legatee  of  the  testator,  or  rather  in  the  executor  of  the  testator,  and 
a  right  to  immediate  possession  arises  on  the  death  of  A.  According 
to  the  modern  English  theory,  A.  has  the  absolute  property,  and  there 
being  no  executory  bequest,  there  is  nothing  to  take  the  property  from 
him,  and  on  his  death  the  chattels  go  to  the  executor  of  A.,  and  not  to 
the  executor  of  the  testator.  The  only  English  case  which  touches 
this  question  is  Eyres  v.  Faidkland,3  in  which  the  point  was  decided, 
as  to  a  term  of  years,  in  favor  of  the  testator's  executor.4 

§  843.  Hitherto  I  have  confined  myself  to  the  English  law  as  to 

chattels  personal;  let  us  now  take  up  the  law  in  the  United  States. 

§  844.   We  have  seen  that  although  the  English  law  recognizes  the 

1  Pp.  43,  44.  Ch.  D.  211;  Re  Roberts,  19  Ch.  D. 

2  Routledge  v.  Dorril,  2  Ves.  Jr.      520. 

357,  366,  367;  Evans  v.  Walker,  3  s  1  Salk.  231.    See  §  820,  ante. 

*  See  24  Law  Quart.  Rev.  431. 


606  THE   RULE   AGAINST  PERPETUITIES. 

validity  of  a  future  bequest  by  will  of  a  chattel  personal,  the  modern 
English  conveyancers  have  said  that  a  future  limitation  of  a  chattel 
personal  cannot  be  created  by  deed.  The  decisions  in  North  Carolina 
have  adopted  this  latter  view,  and  do  not  allow  any  future  limitations 
of  chattels  personal  to  be  created  by  a  conveyance  inter  vivos.1  In 
1823  a  statute  was  passed,  changing  the  law  as  to  slaves;  but  as  to  all 
other  chattels  the  law  remained,  and  remains,  the  same  as  before.2 
But  in  the  other  States,  so  far  as  the  question  has  yet  arisen,  the  same 
future  limitations  of  chattels  personal  that  can  be  created  by  will  can 
be  created  also  inter  vivos.3  It  may  therefore  be  said  to  be  the  general 
American  law  that  any  future  limitation  of  chattels  personal  which 
can  be  made  by  will  can  be  made  also  by  deed. 

§  845.  It  is  submitted  that  the  American  law  is  a  return  to  the 
sounder  doctrine  laid  down  by  Blackstone.4  Future  interests  in 
personalty  owe  nothing  to  statutes;  they  are  what  they  are  by  the 
Common  Law,  and  any  distinction  between  the  right  to  create  them 
by  deed  and  the  right  to  create  them  by  will  seems  purely  arbitrary. 
Undoubtedly  certain  interests  can  be  created  under  wills  by  language 
which  would  not  have  the  same  effect  if  used  in  deeds;  but  the  present 
is  not  a  question  of  construction  or  of  the  use  of  words,  but  whether 
it  is  possible,  by  any  words,  to  make  a  future  limitation  of  a  chattel 
personal,  and  there  is  no  reason  why  this  power,  if  granted  to  a  man  on 
his  death,  should  be  denied  to  him  hi  his  lifetime. 

§  846.  A  notion  which  has  found  expression  hi  a  few  American 
cases,  viz.  that  after  a  gift  or  bequest  of  the  absolute  property  in  a 
chattel  personal,  there  can  be  no  executory  limitation  over,  is  of 
course  totally  erroneous.  It  had  its  origin  in  Paterson  v.  Ettis,6  where 
a  gift  over  of  personalty  was  held  to  be  upon  an  indefinite  failure  of 
issue,  and  therefore  too  remote.  Several  members  of  the  Court,  how- 
ever, said  that  after  a  bequest  of  personalty,  absolute  in  its  terms, 
there  could  be  no  executory  bequest.  But  such  an  idea  has  been  en- 
tirely repudiated  in  New  York,  the  Courts  pointing  out  that  it  arose 
from  confounding  the  case  of  an  executory  bequest  upon  death  with- 
out issue,  or  some  other  contingency  not  dependent  upon  the  mere 
will  of  the  first  taker,  which  executory  bequest  is  unquestionably  good, 

1  See  the  cases  cited,  §  92,  ante.  »  See  the  cases  cited,  §  91,  ante; 

1  Lance  v.  Lance,  5  Jones,  413;      and  cf.  §  97,  ante. 
Bail  v.  Jones,  85  N.  C.  221.  «  2  Bl.  Com.  398;  §  829,  ante. 

•  11  Wend.  259. 


APPENDIX.  607 

with  the  case  of  an  executory  bequest  over  upon  the  failure  of  the 
first  taker  to  dispose  of  his  interest  by  deed,  or  by  deed  or  will,  which 
latter  form  of  executory  bequest  had  been  held  in  New  York  to  be  bad.1 
The  Supreme  Courts  of  Arkansas  and  Iowa  have  followed  the  erro- 
neous dicta  in  Paterson  v.  Ettis.2 

§  847.  In  the  case  of  Wilson  v.  Cockritt3  it  was  decided  that  if 
an  absolute  gift  of  a  chattel  personal  was  made  by  deed,  an  execu- 
tory limitation  over  was  void.  The  Court  declined  to  consider  whether 
it  would  have  been  good  if  created  by  will.  This  case  and  the  case  of 
Betty  v.  Moore 4  are  believed  to  be  the  only  American  cases,  outside 
of  North  Carolina,  in  which  any  distinction  between  the  validity 
of  an  executory  limitation  made  by  deed  and  of  one  made  by  will  is 
suggested. 

§  848.  The  cases  in  the  United  States  in  which  executory  limi- 
tations after  absolute  gifts  or  bequests  of  chattels  personal  have 
been  allowed  are  very  numerous.5 

§  849.  To  come  now  to  the  case  where  a  chattel  personal  is  given  to 
A.  for  life  and  on  his  death  to  B.  The  gift  over  to  B.  is  universally 
recognized  as  valid  throughout  the  United  States  when  it  is  created 
by  will,  and  also  (except  in  North  Carolina)  when  it  is  created  inter 
vivos.  And  not  only  is  it  a  valid  interest,  but  it  is  a  valid  legal 

1  Norris  v.  Beyea,  13  N.  Y.  273.  v.  Sothoron,  10  G.  &  J.  187.    Clagett 
Tyson  v.  Blake,  22  N.  Y.  528.    See  v.  Worthington,  3  GUI,  83,  92.    Ede- 
Gray,  Restraints  on  Alienation  (2d  len    v.    Middleton,    9    Gill,    161. 
ed.),  §§  65  et  seq.  Woodland  v.  Wallis,   6  Md.   151. 

2  Moody  v.  Walker,  3  Ark.  147.  Budd  v.  Posey,  22  Md.  48.    Waddy 
Maulding   v.    Scott,    13    Ark.    88.  v.  Stunnan,  Jeff.  5.    Higgenbotham 
Scull    v.    Vaugine,    15    Ark.    695.  v.  Rucker,  2  Call,  313.    Royall  v. 
Slaughter    v.    Slaughter,    23    Ark.  Eppes,  2  Munf .  479.    Timber-lake  v. 
356.    Robinson  v.  Bishop,  Id.  378.  Graves,  6  Munf.   174.    Threadgill 
But  cf.  Bunch  v.  Nicks,  50  Ark.  v.  Ingram,  1  Ired.  577.    Brasswell 
367,    276.      Talbot    v.    Snodgrass,  v.  Morehead,  Busb.  Eq.  26.    Keat- 
124  Iowa,  681.  ing  v.  Reynolds,  1  Bay,  80.    Henry 

»  8  Mo.  1.  v.  Means,  2  Hill  (S.  C.)  328.  Hill  v. 

*  1  Dana,  235.  See§§91,95,anfe.  Hill,  Dudl.  Eq.  71,  83,  84.  Rogers 

5  Moffat  v.  Strong,  10  Johns,  v.  Randall,  2  Speers,  38.  Marshall 

12,  18.    Deihl  v.  King,  6  S.  &  R.  29.  v.  Rives,  8  Rich.  85.    Henderson  v. 

Drury  v.  Grace,  2  H.  &  J.  356.    Ra-  Kinard,  29  So.  Car.  15.    Robert  v. 

borg  v.  Hammond,  2  H.  &  G.  42.  West,  15  Ga.  122.    Harris  v.  Smith, 

Dashiell  v.  Dashiell,  Id.  127.    Bis-  16Ga.545.    Moore  v.  Howe,  4  T.  B. 

coe  v.  Biscoe,  6  G.  &  J.  232.    Jones  Monr.  199. 


608  THE   RULE   AGAINST   PERPETUITIES. 

interest  which  has  been  repeatedly  the  subject  of  an  action  at 
law.1 

§  850.  But  is  this  limitation  to  B.  a  vested  interest  in  the  nature  of 
a  remainder,  subject  to  the  right  of  A.  to  the  possession  of  the  chattel 
for  life;  or  is  A.  to  be  regarded  as  having  the  absolute  property,  with  an 
executory  bequest  over  to  B.?  In  other  words,  do  the  American  courts 
apply  the  old  doctrine  which  prevailed  in  England  down  to  the  middle 
of  the  eighteenth  century,  or  have  they  adopted  the  theory  of  the  more 
modern  conveyancers?  It  is  impossible  to  determine  this  from  the 
names  attributed  in  the  reports  to  the  interest  of  B.,  for  there  is  no 
uniform  practice;  sometimes  it  is  called  a  remainder,  sometimes 
an  executory  limitation;  to  determine  its  nature,  we  must  have  re- 
course to  the  two  test  cases  which  we  have  applied  in  the  case  of  the 
English  Law. 

§  851.  First.  Suppose  a  chattel  personal  is  bequeathed  to  A. 
for  life,  on  A.'s  death  to  his  eldest  son  for  life,  and  on  the  death  of 
such  eldest  son  then  to  the  other  children  of  A.  A.  is  a  bachelor 
at  the  testator's  death.  Is  the  bequest  to  the  younger  children  of 
A.  a  good  vested  quasi  remainder,  or  is  it  an  executory  bequest  void 
for  remoteness?  We  have  seen  that  all  the  English  authority  is  in 
favor  of  the  former  view,  so  are  the  only  two  American  cases  I  have 
found  on  the  point.2 

§  852.  Second.  Suppose  a  chattel  personal  is  bequeathed  to  A. 
for  life,  and  there  is  no  gift  over,  does  the  chattel  after  A.'s  death 
go  to  the  executor  of  the  testator  or  to  the  executor  of  A.?  We  have 
seen  that  there  is  but  one  English  authority  bearing  on  this  question, 
but  there  is  no  lack  of  American  authority.  In  Delaware,  if  a  chattel 
is  bequeathed  to  A.  for  life,  A.  takes  the  absolute  property.3  In  Marker's 
Appeal 4  a  testator  gave  to  his  wife  personal  property  "to  her  full 
ownership,  so  long  as  she  doth  live."  The  Supreme  Court  of  Pennsyl- 

1  This  recognition'  of  the  valid-  Seaver    v.    Fitzgerald,    141    Mass, 

ity  of  such  a  gift  when  created  by  401.    And  see  Crosby  v.  Crosby,  64 

deed  was  recognized  in  Virginia  in  N.  H.  77;  Lennig's  Estate,  31  W.  N. 

an  early  series  of  cases  beginning  C.  (Pa.)  234,  236. 
in  1736;  Edmonds  v.  Hughes,  Jeff.  »  State  v.  Savin,  4  Hairing.  56, 

2;  Waddy  v.  Sturman,  Id.  5;  Jones  note.    Dericksen  v.  Garden,  5  Del. 

v.  Langhorn,  Id.  37;  Spicer  v.  Pope,  Ch.  323. 
Id.  43.  «  109  Pa.  St.  235. 

Loring  v.  Blake,  98  Mass.  253. 


APPENDIX.  609 

vania  said:  "It  is  a  gift  for  life,  without  any  limitation  over,  and 
without  the  intervention  of  a  trustee.  There  is  a  line  of  decisions  in 
this  State  which  hold  that  such  a  bequest  is  absolute."  The  Court 
cites  several  cases  as  supporting  this  proposition,  but  the  only  one 
which  tends  to  do  so  is  Brownfield's  Estate.1  The  proposition  is,  how- 
ever, repeated  in  Drennan's  Appeal2  and  Hartman's  Estate.3  It 
seems  rather  to  be  a  rule  of  construction  than  to  be  based  upon  any 
peculiar  doctrine  as  to  the  nature  of  a  life  interest  in  personalty.  It 
is  justly  criticised  by  Penrose,  J.,  in  Kane's  Estate.4  In  the  other 
States  the  authority  is  all  in  favor  of  a  reversionary  interest.5 
§  853.  Summary.  —  (I.)  Chattels  real. 

A.  There  can  be  an  estate  for  years  (sub-lease)  in  a  chattel  real. 

B.  There  can  be  no  estate  for  life  in  a  chattel  real,  because  a  life 
estate  is  larger  than  any  term. 

C.  A  gift  for  life  of  a  chattel  real  passes  the  absolute  interest. 

D.  Therefore,  after  a  gift  for  life  of  a  chattel  real,  there  can  be 
no  vested  interest  or  quasi  remainder;  any  future  interest  after  such 
gift  can  be  good  only  as  an  executory  limitation. 

E.  Such  an  executory  limitation  can  be  created  by  will. 

F.  In  America  (except  in  North  Carolina)  it  can  probably  be 
created  inter  vivos.    But  there  is  no  decision  exactly  in  point. 

G.  In  England  it  is  said  that  it  cannot  be  created  inter  vivos,  but 
there  is  no  decision  to  that  effect. 

H.  The  American  doctrine  is  the  better,  as  there  is  no  rational 
distinction  in  this  respect  between  deeds  and  wills,  and  no  judicial 
authority  in  favor  of  such  a  distinction. 

I.   If  a  chattel  real  is  bequeathed  to  A.,  a  living  person,  and  his 

1  8  Watts,  465.  v.  Emberson,  6  Ired.  Eq.  151;   (see 

*  20  W.  N.  C.  (Pa.)  522.  Newell  v.  Taylor,  3  Jones,  Eq.  374). 

*  11  Pa.  Super.  Ct.  35.  Geiger  v.  Brown,  4  McCord,  418, 
4  6  Pa.   Dist.   C.  553;    19  Pa.      427;  s.  c.  2  Strob.  Eq.  359,  note. 

C.  C.  589.    See  London  v.  Turner,  Haralson   v.    Redd,    15    Ga.    148. 

11  Leigh,  403,  411,  413.  Booth  v.  Terrell,  16  Ga.  20;  8.  c. 

6  Brown  v.  Kelsey,  2  Gush.  243,  18  Ga.  570.     Johnson  v.  Johnson, 

248,  249.    Hoes  v.  Hoesen,  1  Comst.  104  Ky.  714.    McCutchin  v.  Price, 

120.    Morris  v.  Owen,  2  Call,  520.  3  Hayw.  211.     Vannerson  v.  Cul- 

Bartlett  v.  Patton,  33  W.  Va.  71.  bertson,  10  Sm.  &  M.  150.    Harris 

Anon.,   2   Hayw.    161.     James   v.  v.  McLaran,  30  Miss.  533.    Keyea 

Masters,  3  Murphy,  110.    Black  v.  on  Chattels,  §§  276,  277. 
Ray,  1  Dev.  &  B.  334.    Creswell 


610  THE    RULE   AGAINST   PERPETUITIES. 

executors,  after  a  bequest  for  life  to  an  unborn  person,  such  gift  to 
A.,  being  an  executory  limitation,  should  on  theory  be  held  void  for 
remoteness;  but  there  is  no  authority  on  this  point. 

J.  If  a  chattel  real  is  bequeathed  to  A.  for  life,  with  no  limitation 
7>ver,  A.  takes  the  whole  term,  and  there  being  no  limitation  over,  it 
should  on  theory  go,  on  A.'s  death,  to  his  executor;  but  the  only 
authority  is  contra. 

§  854.   (II.)  Chattels  personal. 

A.  A  chattel  personal  can  be  bailed  for  years. 

B.  If  a  chattel  personal  is  given  to  A.  for  life,  and  on  his  death 
to  B.,  B.  takes  a  legal  interest. 

C.  This  can  be  done  by  will. 

D.  And  also,  in  the  United  States  (except  in  North  Carolina), 
inter  vivos. 

E.  In  England  the  modern  text-writers  say  this  cannot  be  done 
inter  vivos,  but  there  is  no  judicial  authority  to  that  effect. 

F.  The  American  doctrine  is  the  better,  for  there  is  no  rational 
distinction  in  this  respect  between  deeds  and  wills. 

G.  If  a  chattel  personal  is  bequeathed  to  A.  for  Me,  and  on  his  death 
to  B.,  A.  has  the  use  and  occupation,  and  B.  a  vested  interest,  a  quasi 
remainder.    This  is  the  doctrine  of  the  older  cases. 

H.  Modern  English  text-writers  say  that  A.  has  the  property  in 
the  chattel,  and  the  bequest  to  B.  is  an  executory  limitation. 

I.  The  older  doctrine  is  the  sounder.  There  is  no  reason  why  the 
use  and  occupation  of  a  chattel  personal  should  not  be  given  for  life; 
the  doctrine  (I.)  B.  supra,  as  to  chattels  real,  has  no  application  to  chat- 
tels personal;  there  is  no  legal  presumption  that  a  man  will  live  longer 
than  a  picture  or  table  will  last. 

J.  Suppose  a  chattel  personal  is  bequeathed  to  an  unborn  person 
for  life,  and  on  his  death  to  A.  and  his  executors.  If  the  gift  to  A. 
is  vested  (according  to  the  old  theory),  then  it  is  not  too  remote; 
if  the  gift  to  A.  is  executory,  then  it  is  void  for  remoteness.  All  the 
authorities,  American  and  English,  hold  that  the  gift  to  A.  is  not  too 
remote. 

K.  Suppose  a  chattel  personal  is  given  to  A.  for  life,  with  no  lim- 
itation over.  Then,  on  the  old  theory,  upon  A.'s  death  there  is 
a  reversion  to  the  donor  or  his  executors.  On  the  modern  English 
theory  A.  takes  the  whole  property  in  the  chattel,  and  there  being 
no  limitation  over,  it  should  go  on  A.'s  death  to  his  executors. 


APPENDIX.  611 

There  is  no  English  authority  directly  on  the  point.  The  weight 
of  American  authority  is  in  favor  of  the  reversion. 

§  855.  (1)  As,  therefore,  there  is  no  reason  why  the  use  and  oc- 
cupation of  a  chattel  personal  should  not  be  given  for  life; 1  (2)  as 
the  judicial  authorities  proceed  on  the  theory  that  the  gift  for  life  of 
a  chattel  personal  is  a  gift  of  the  use  and  possession  only;  (3)  as  there 
is  no  judicial  decision  the  other  way,2  but  only  the  cantilena  of  modern 
text-writers,  based  on  the  mistaken  analogy  of  chattels  real;  (4)  as 
on  one  of  the  test  questions  all  the  authority,  English  and  American, 
and  on  the  other  the  great  weight  of  authority  is  in  favor  of  the  old 
view;  and  (5)  as  it  is  very  desirable  that  in  such  matters  there  should 
be  no  difference  between  real  and  personal  property,  the  statement 
may  perhaps  be  ventured  that  in  the  United  States  we  have  stayed 
faithful  to  the  old  law,  and  that  after  a  gift  of  a  chattel  personal  for 
life  there  may  be  a  vested  interest  in  the  nature  of  a  remainder  or  re- 
version, and  not  merely  an  executory  limitation. 

§  856.  As  to  chattels  real,  it  would  certainly  be  desirable  that  in 
them,  also,  the  Law  should  recognize  the  possibility  of  interests  for 
life,  and  there  is  no  reason  in  the  nature  of  chattels  real  why  it  should 
not.  On  one  of  the  two  test  questions  there  appears  to  be  no  author- 
ity either  way,  and  on  the  other  the  sole  decision  is  in  favor  of  such 
recognition.  The  only  obstacle  is  the  notion  that  as  an  estate  for 
life  is  longer  than  any  term  for  years,  a  grant  for  life  of  a  chattel  real 
must  pass  all  that  there  is  to  pass,  i.  e.  the  whole  term.  Would  it  be 
too  bold  a  step  on  the  part  of  the  courts  to  drop  this  bit  of  antiquated 
scholasticism  and  put  chattels  real  in  the  same  position  as  chattels 
personal? 


G. 

GENERAL    AND    PARTICULAR     INTENT     IN     CONNECTION 
WITH  THE  RULE  AGAINST  PERPETUITIES.8 

§  857.  A   State  Court  of  reputation  has  decided  an  important 
question  of  common  law  contrary  to  every  previous  case.    The  ques- 

1  I    have   in   general    tried    to  2  Unless   Re   Tritton,  61  L.  T. 

avoid  the  expression  "bailment  for  301,  be  an  exception, 
life,"  fearing  it  might  shock  some  *  The  substance  of  this  article 

ears,   although   I   myself  have  no  was  printed  in  9  Harv.  Law  Rev. 

objection  to  it.  242. 


612  THE   RULE   AGAINST   PERPETUITIES. 

tion  has  come  up  repeatedly  in  the  English  courts  as  well  as  in  the 
courts  of  many  of  the  United  States,  and  has  always  been  answered 
the  other  way.  Yet  the  decision  referred  to  is  no  careless  or  ignorant 
expression  of  opinion.  It  is  a  well-considered  judgment,  written  with 
full  appreciation  of  the  unbroken  authority  against  it.  The  case  is 
Edgerly  v.  Barker,1  decided  by  the  Supreme  Court  of  New  Hampshire 
in  an  opinion  written  by  Chief  Justice  Doe.  Such  a  decision  is  an 
unusual  occurrence  and  deserves  examination. 

§  858.  The  case  was  this.  Hiram  Barker,  a  resident  of  New  Hamp- 
shire, died,  leaving  a  will  and  codicils  which  were  duly  proved.  After 
sundry  legacies,  he  gave  the  residue  of  his  estate,  real  and  personal, 
which  was  about  $600,000,  to  trustees  in  trust  to  pay  his  daughter 
Clara  $2,000  a  year,  and  more  if  necessary  for  her  comfortable  support; 
to  pay  $1,000  a  year,  or  more  in  the  discretion  of  the  trustees,  to  his 
son,  Hiram  H.  Barker,  for  the  support  of  himself  and  his  family,  if 
from  his  habits  and  mode  of  life  he  should  prove  himself  safe  and 
competent  to  have  the  use  and  expenditure  of  the  money;  if  not,  then 
the  trustees  to  have  the  expenditure  of  the  money  for  the  same  purpose; 
to  furnish  means  for  the  education  of  all  the  son's  children,  including 
those  born  after  the  testator's  death;  if  the  son  should  "become  and 
remain  temperate,  sober,  and  correct  hi  his  habits"  for  five  years 
together,  $5,000  to  be  paid  to  him,  and  at  the  end  of  ten  years  and  of 
fifteen  years  further  sums  if  he  should  remain  "perfectly  temperate 
and  of  good  and  regular  habits;"  and  to  pay  to  his  son's  wife,  should 
she  survive  him,  $500  a  year  or  more  at  the  trustees'  discretion. 

§  859.  Then  came  the  clause  under  which  the  question  arose. 
It  provided  that  the  trustees  should  pay  to  each  of  said  children  of 
the  testator's  son,  when  said  child  should  reach  twenty-one,  and  to 
each  child  of  his  said  daughter,  if  she  should  have  any,  the  sum  of 
from  $3,000  to  $5,000,  if  such  child  should  be  temperate  and  of  good 
capacity  to  manage  the  money;  and  from  tune  to  tune  thereafter,  as 
the  wants  and  necessities  of  the  children  should  require,  the  trustees 
should  pay  out  such  further  sums  as  might  be  necessary;  "and  when 
the  youngest  of  said  children  shall  arrive  at  the  age  of  forty  years, 
then  all  my  estate  shall  be  theirs,  to  have  and  to  hold  the  same  to 
them  and  their  heirs,  those  of  them  of  good  and  regular  habits  and  of 
capacity  to  do  business  and  manage  property,  to  take  care  of  and  man- 

1  66  N.  H.  434. 


APPENDIX.  613 

age,  as  trustees,  the  portion  or  portions  thereof  belonging  to  those,  if 
any,  who  are  not  then  possessed  of  such  habits  and  capacity;  but 
before  said  property  shall  vest  in  and  be  theirs,  proper,  suitable,  and 
sufficient  bonds  or  other  security  must  be  given  by  them  for  the  pay- 
ment of  said  sum  or  sums  to  my  said  daughter,  if  living,  so  long  as  she 
shall  live,  to  my  said  son's  widow  if  she  shall  then  be  living,  so  long 
as  she  lives  and  remains  his  widow,  and  also  for  the  good  and  sufficient 
support  of  my  said  son  so  long  as  he  shall  live." 

§  860.  The  executors  of  the  will  brought  a  bill  of  interpleader 
against  the  testator's  son  and  daughter,  and  against  the  trustees. 
The  counsel  for  the  trustees  contended  that  the  gift  of  the  residue 
to  the  grandchildren  was  good;  the  son's  counsel,  that  it  was  bad. 

There  were,  of  course,  four  questions: 

First.  To  whom  was  the  residue  given? 

Second.  Was  the  gift  vested  or  contingent? 

Third.  If  contingent,  was  it  too  remote? 

Fourth.  If  too  remote,  what  was  the  consequence? 

§  861.  The  first  two  questions  are  questions  of  construction. 
The  Chief  Justice  begins  his  opinion  thus:  "The  construction  of 
the  will,  including  the  question  whether  the  testator  intended  the 
remainder,  which  he  devised  to  his  grandchildren,  should  vest  hi 
them  before  they  became  entitled  to  a  distribution  of  it,  is  deter- 
mined as  a  question  of  fact  by  competent  evidence,  and  not  by  rules 
of  law."  This  mode  of  expression  is  peculiar  to  the  learned  Court. 
Whether  correct  or  not,  it  is  unnecessary  for  the  matter  in  hand  to 
consider. 

§  862.  First.  The  first  question  the  Chief  Justice  answers  by 
saying  that  the  residue  is  given  to  living  grandchildren  and  the  issue 
per  stirpes  of  deceased  grandchildren.  This  is  a  highly  novel  construc- 
tion, but  it  is  purely  a  matter  of  interpretation,  and  I  do  not  dwell 
upon  it. 

§863.  Second.  The  Court  assumes  that  the  gift  to  the  grand- 
children is  contingent.  By  including  the  issue  of  deceased  grand- 
children in  the  class  of  residuary  legatees  the  Court  does  away  with 
one  of  the  chief  arguments  for  calling  the  gift  vested.  Yet  there 
is  another  circumstance  that  points  strongly  towards  vesting,  and 
that  is  the  power  given  the  trustees  to  make  payments  to  the  testator's 
grandchildren  before  the  final  distribution.  This  power  might  be, 
and  probably  would  be,  exercised  to  a  very  different  extent  with 


614  THE   BULB  AGAINST  PERPETUITIES. 

different  grandchildren,  and  yet,  if  the  final  gift  be  contingent,  no 
account  can  be  taken  of  this.  I  have,  however,  no  desire  to  criticise 
the  conclusion,  or  rather  the  assumption  of  the  Court,  that  the  gift 
is  contingent.  On  the  contrary,  if  I  may  take  the  liberty  of  saying  so, 
it  seems  to  me  correct.  The  only  gift  to  the  grandchildren  is  the  gift 
to  pay  when  the  youngest  reaches  forty;  this  makes  the  gift  prima 
fade  contingent;  and  the  circumstances  fortifying  this  conclusion 
seem  to  be  greater  than  those  against  it.  Yet  it  should  be  borne  in 
mind  that  the  testator  (as  is  not  unfrequently  the  case)  had  wishes 
which  are  really  inconsistent,  and  that  his  wishes  that  the  interests 
should  vest  fail  of  effect  only  because  more  and  weightier  indications 
of  intention  are  inconsistent  with  their  vesting.  I  want  to  insist  upon 
this,  because,  as  I  think  will  be  apparent  to  the  learned  reader,  the 
circumstances  making  in  favor  of  the  vesting  of  this  gift  rendered  it 
easier  for  the  Court  to  introduce  its  new  theory  into  the  law  than  it 
would  have  been  in  the  case  of  an  unquestionably  contingent  gift. 

§  864.  Third.  The  gift  to  the  grandchildren  then  being  contin- 
gent, is  it  too  remote?  Of  this  there  can  be  no  doubt.  The  gift 
is  to  them  at  forty,  which  is  obviously  beyond  the  period  allowed 
by  law. 

§  865.  Fourth.  What  then  is  the  result?  The  answer  which  has 
always  hitherto  been  made  in  like  cases  is,  that  the  gift  is  void,  and 
there  is  an  intestacy.  The  Supreme  Court  of  New  Hampshire  now 
says  that  the  fund  is  to  be  distributed  to  the  grandchildren  when  they 
reach  twenty-one.  Until  this  case  of  Edgerly  v.  Barker  the  law,  as 
held  in  every  other  jurisdiction  where  the  common  law  prevails  and  the 
question  has  come  up,  is  this.  If  a  gift  is  made  to  a  person  or  class 
as  filling  a  particular  character  at  a  tune  which  may  be  too  remote, 
the  court  will  not  substitute  therefor  a  gift  to  the  person  or  class  filling 
the  character  at  a  time  within  the  limits.  Thus,  for  a  gift  to  such  of 
the  testator's  grandchildren  as  reach  twenty-five  the  court  will  not 
substitute  a  gift  to  such  of  the  grandchildren  as  reach  twenty-one  or 
some  less  age.  It  would  be  pedantic  to  multiply  authorities  for  this 
statement.  Half  a  dozen  from  England,  the  United  States,  Canada, 
and  Australia  will  suffice.1  Indeed,  the  Supreme  Court  of  New  Hamp- 

1  Leake   v.   Robinson,    2    Mer.  Meyers  v.  Hamilton  Co.,   19  Ont. 

363.     Sears  v.  Putnam,  102  Mass.  358.     Ker    v.   Hamilton,    6   Viet. 

6.     Coggins's  Appeal,  124  Pa.  10.  L.  R.  Eq.  172. 
Albert    v.    Albert,    68    Md.    352. 


APPENDIX.  615 

shire  does  not  suggest  that  there  has  ever  been  a  decision  or  a  judicial 
dictum  of  any  kind  denying  or  questioning  the  proposition  above 
stated. 

§  866.  The  Chief  Justice's  line  of  reasoning,  as  I  understand  it, 
is  this :  — 

(1)  It  is  conceded  that  there  must  be  some  restraint  on  the  creation 
of  future  interests. 

(2)  There  is  no  statute  in  New  Hampshire  on  the  subject. 

(3)  There  is  no  decision  of  the  New  Hampshire   Court  on  the 
subject. 

(4)  The  Court  therefore  must  adopt  or  make  a  rule. 

(5)  The  Rule  against  Perpetuities  as  administered  in  England 
is  later  than  the  settlement  of  New  Hampshire,  and  therefore  the 
decisions  of  the  English  courts  are  not  binding  precedents  in  that 
State. 

All  these  propositions  are  unquestionably  correct. 

§  867.  The  Court  then  goes  on  to  lay  down  this  rule.  When 
there  is  a  primary  intention  to  make  a  gift  to  a  class,  and  a  second- 
ary intention  that  the  gift  shall  take  effect  at  a  period  which  may 
be  too  remote,  the  Court  will  give  effect  to  the  primary  intention 
by  substituting  a  gift  to  the  class  to  take  effect  at  a  period  which 
is  within  the  limits.  The  Court  then  refers  to  certain  cases  which, 
although  not  precisely  in  point,  it  deems  to  be  analogous  and  to 
furnish  a  support  to  its  conclusion. 

§  868.  Any  comments  on  this  novel  doctrine  of  the  New  Hamp- 
shire Court  fall  naturally  under  four  heads :  — 

I.  The  departure  of  the  Court  from  the  law  held  in  other  States. 

II.  The  fallacy  contained  in  the  new  doctrine. 

III.  An  examination  of  the  cases  supposed  to  be  analogous. 

IV.  The  applications  of  the  doctrine.  • 

§  869.  I.  It  is  true  that  there  is  no  precedent,  which  the  Court 
of  New  Hampshire  has  to  regard  as  binding,  that  compels  it  to  follow 
the  rulings  elsewhere;  but  I  submit  it  is  a  serious  thing  deliberately 
to  break  away  from  the  consensus  of  the  English-speaking  world  on 
this  subject.  True,  the  matter  is  not  one  of  commercial  intercourse, 
and  therefore  it  is  not  so  important  that  the  law  should  be  uniform 
upon  it;  but  persons  often  own  land  in  States  other  than  their  own, 
and  it  is  an  evil  that  the  laws  governing  the  settlement  and  devolu- 
tion of  property  should  differ. 


616  THE   RULE   AGAINST   PERPETUITIES. 

§  870.  Again,  I  am  no  blind  admirer  of  the  Rule  against  Per- 
petuities, but  it  is  a  doctrine  of  purely  judicial  origin,  and  it  has 
grown  to  fit  the  ordinary  dealings  of  the  community.  It  is,  too,  a 
well-established,  simple,  and  clear  rule.  There  are  indeed  some 
few  cases  where  the  law  is  still  unsettled,  but  they  are  largely  on 
matters  which  will  never  come  up  in  this  country,  such  as  the  creation 
of  long  terms  attendant  upon  estates  tail.  The  process  of  adjudi- 
cation has  been  a  process  of  clearing  and  simplification,  and  the  ten- 
dency of  legislation,  so  far  as  it  has  touched  the  matter  at  all,  has  been 
to  make  the  rule  more  stringent. 

§  871.  It  is  a  dangerous  thing  to  make  such  a  radical  change  in 
a  part  of  the  law  which  is  concatenated  with  almost  mathematical 
precision.  A  striking  instance  is  shown  by  the  fate  of  New  York. 
Before  the  year  1828,  the  forty  or  fifty  volumes  of  the  New  York 
Reports  disclose  but  one  case  involving  a  question  of  remoteness. 
In  that  year  the  reviewers  (clever  men  they  were,  too)  undertook 
to  remodel  the  Rule  against  Perpetuities,  and  what  a  mess  they 
made  of  it!  Between  four  and  five  hundred  cases  have  come  before 
the  New  York  courts  under  the  statute  as  to  remoteness,  —  an  impres- 
sive warning  on  the  danger  of  meddling  with  the  subject. 

§  872.  II.  The  doctrine  of  the  New  Hampshire  Court  in  this 
case  involves  a  fallacy.  It  speaks  of  a  primary  intent  to  give  to 
persons  and  a  secondary  intent  to  give  to  them  at  a  particular  time, 
and  it  purports  to  preserve  the  primary  intent  while  discarding  the 
secondary  intent  by  substituting  another  time.  This  assumes  that  the 
persons  remain  the  same,  and  only  the  time  is  changed.  But  that  is 
precisely  what  does  not  occur;  with  the  time,  the  persons  are  changed. 
Take  the  present  case.  The  testator  meant  to  give  to  those  of  his 
grandchildren  who  reached  forty;  the  Court  gives  the  property  to 
those  of  the  grandchildren  who  reach  twenty-one.  There  may  be  six 
grandchildren  who  reach  twenty-one,  and  only  one  who  reaches  forty. 
In  such  case  shares  would  be  given  to  five  persons  whom  the  testator 
never  meant  to  have  it.  There  may  be  some  answer  to  this,  but  it 
is  a  real  and  a  very  serious  objection,  and  deserves  an  answer,  and 
it  gets  none  from  the  New  Hampshire  Court.  The  case  is  dealt  with 
throughout  as  if  the  only  question  were  whether  the  same  persons 
should  get  the  property  at  forty  or  at  twenty-one.  As  remarked 
above,  the  circumstances  which  tended  to  show  an  intention  to  make 
this  gift  vested  probably  obscured  the  fact  from  the  Court  that  it 


APPENDIX.  617 

was  taking  property  devised  to  one  set  of  people  and  giving  it  to 
another. 

§  873.  III.  Let  us  look  now  at  the  cases  which  seemed  to  the 
New  Hampshire  Court  to  furnish  a  treatment  of  legal  situations 
analogous  to  that  which  it  adopted  in  Edgerly  v.  Barker. 

§  874.  A.  Under  a  power  to  lease  for  twenty-one  years,  a  lease 
for  forty  years  is  good  in  equity  for  twenty-one  years.  This  is  true.1 
It  is  allowing  a  present  vested  interest  to  continue  as  long  as  a  power 
permits.  It  has  no  similarity  with  changing  the  condition  precedent 
on  which  a  future  interest  is  to  vest  so  as  to  give  it  to  those  persons 
who  happen  to  answer  to  a  particular  description  at  one  time,  instead 
of  giving  it  to  those  persons  who  answer  to  the  description  at  another 
time.  We  have  here  in  fact  an  instance  of  that  confusion  of  ideas 
which  has  been  such  a  /cms  malorum  in  questions  of  remoteness.  The 
Rule  against  Perpetuities  is  aimed  against  remote  future  contingent 
interests,  and  has  nothing  to  do  directly  with  the  continuance  of 
present  interests.  The  failure  to  keep  this  clearly  in  view  has  led,  and 
always  will  lead,  to  error. 

§875.  B.  "Under  a  statute  restricting  to  a  term  not  exceeding 
twenty-one  years  the  time  for  which  a  tenant  for  life  can  be  em- 
powered to  lease,  a  testamentary  gift  to  a  tenant  for  hie  of  a  power 
to  lease  for  sixty-three  years  is  not  void.  If  he  makes  a  lease  for 
more  than  twenty-one  years  it  is  void  for  the  excess,  and  no  more. 
Nelson,  C.  J.,  and  Bronson  and  Cowen,  JJ.,  in  Root  v.  Stuyvesant, 
18  Wend.  257,  273,  275-277,  290,  291,  302,  306,  307,  313." 2  Then 
follow  two  long  extracts  from  Nelson,  C.  J.,  and  Cowen,  J.  Would 
one  suppose  from  this  that  Nelson,  C.  J.,  and  Bronson  and  Cowen, 
JJ.,  were  the  dissenters  from  the  judgment  of  the  Court  of  Errors 
affirming  the  decision  of  the  Chancellor?  Yet  such  is  the  fact.  The 
will  in  Root  v.  Stuyvesant  was  made  before  the  statute,  and  at  a  time 
when  terms  for  sixty-three  years  were  good  (though  brought  within 
the  purview  of  the  statute  by  a  subsequent  republi cation),  and  the 
Chancellor  and  the  majority  of  the  Court  of  Errors  thought  that  the 
statutory  inhibition  of  these  terms  so  altered  the  scheme  of  the  will 
as  to  avoid  it  altogether.  The  particular  proposition  for  which  the 
opinions  of  the  dissenting  judges  in  Root  v.  Stuyvesant  are  cited,  that 
an  appointment  under  a  power  is  not  rendered  bad  by  the  fact  that  a 

1  Campbell     v.     Leach,     Amb.  «  66  N.  H.  462. 

740,  745. 


618  THE   RULE   AGAINST  PERPETUITIES. 

bad  appointment  could  be  made  under  the  power,  is  good  law  enough. 
Indeed,  almost  every  imaginable  power  is  one  under  which  a  bad 
appointment  might  be  made,  e.  g.  a  power  to  appoint  to  issue.  What 
the  opinions  of  the  dissenting  judges  are  cited  for  is  not  entirely  clear. 
If  it  is  that  the  court  can  mould  invalid  provisions  so  as  to  make 
them  good,  it  is  enough  to  say  that  the  opinion  of  the  Chancellor 
and  the  majority  of  the  Court  of  Errors  is  directly  opposed  to  such 
a  view. 

§  876.  C.  The  doctrine  of  cy  pres  forms  a  recognized  exception 
to  the  rule  that  construction  is  not  affected  by  questions  of  remote- 
ness.1 That  doctrine  is  this.  When  land  is  devised  to  an  unborn 
person  for  life,  remainder  to  his  children  in  tail,  the  unborn  person 
takes  an  estate  tail;  so  also  when  there  is  a  series  of  successive  life 
estates.  This  doctrine  was  originally  confined  to  executory  trusts, 
where,  of  course,  it  was  all  well  enough,  but  it  has  been  extended  to 
legal  estates. 

§  877.  Now  it  should  be  observed  that  this  doctrine  has  always 
been  regarded  with  suspicion  and  disapproval  by  the  ablest  judges. 
Lord  Kenyon  was  the  first,  in  1786,  to  extend  it  beyond  the  case 
of  executory  trusts,  yet  he  himself,  in  Brudenell  v.  Elwes?  said:  "The 
doctrine  of  cy  pres  goes  to  the  utmost  verge  of  the  law.  .  .  .  We 
must  take  care  that  it  does  not  run  wild.  ...  I  know  that  great 
judges  entertained  considerable  scruples  at  the  time  concerning  that 
decision.  [Pitt  v.  Jackson.3]  It  went  indeed  to  the  outside  of  the 
rules  of  construction."  So  Sir  J.  L.  Knight  Bruce,  V.  C.,  in  Boughton 
v.  James;*  "The  doctrine  has  gone,  at  least,  far  enough."  So  the  Court 
of  Exchequer  in  Monypenny  v.  Dering:6  "Without,  therefore,  mean- 
ing to  say  that  the  doctrine  [of  cy  pres]  on  which  Lord  Kenyon  pro- 
ceeded, and  which  V.  C.  Wigram  felt  himself  bound  to  follow,  is 
satisfactory  to  our  minds,  it  is  sufficient  for  us  to  say  that  those 
authorities  are  not  precisely  in  point,  and  we  do  not  feel  inclined  to 
carry  the  doctrine  on  which  they  rest  one  step  further."  And,  finally, 
in  Brudenell  v.  Elwes*  Lord  Eldon,  C.:  "Those  cases  have  at  least 
gone,  as  Lord  Kenyon  observes,  to  the  utmost  verge  of  the  law; 
and  I  shall  find  it  very  difficult  to  alter  an  opinion  I  have  taken  up, 
that  it  is  not  proper  to  go  one  step  farther;  for  in  those  cases,  in 

1  See  §§  643  et  seq.,  ante.  *  1  Coll.  26,  44. 

1  1  East,  442,  451.  •  16  M.  &  W.  418,  434. 

«  2  Bro.  C.  C.  51.  •  7  Ves.  382,  390. 


APPENDIX.  619 

order  to  serve  the  general  intent  and  the  particular  intent,  they 
destroy  both." 

§  878.  But  the  indispensable  condition  for  the  application  of  the 
doctrine  of  cy  pres  is  that  the  persons  who  take  under  it  shall  be 
the  same,  no  more  and  no  fewer,  than  those  to  whom  the  testator 
intended  to  give  the  estate.  If  the  estate  tail  is  suffered  to  con- 
tinue undocked,  then  exactly  the  same  persons  will  take  under  the 
doctrine  of  cy  pres  that  the  testator  intended  to  take,  and  it  is  this 
equivalence  which  satisfied  the  formalism  of  Lord  Kenyon,  while 
later  judges  of  more  enlarged  mind  have  recognized  that  the  power  of 
docking  the  entail  really  changes  the  persons  who  can  take,  and  this 
has  made  them  regret  the  decision. 

§  879.  The  doctrine  of  cy  pres,  circumscribed  and  criticised  as  it 
has  been,  is  in  truth  a  strong  argument  against  a  change  by  the 
authority  of  the  court  from  one  set  of  persons  to  another  set  of 
persons. 

§  880.  D.  It  is  strange  that  Chief  Justice  Doe  did  not  bring 
forward  a  class  of  cases  which  furnish  in  truth  a  more  plausible  sup- 
port to  his  views  than  any  which  he  has  given.  If  a  testator  devises 
his  estate  to  his  grandchildren  in  equal  shares,  and  then  directs  that 
of  the  share  of  each  granddaughter  the  income  shall  be  paid  to  her 
for  life  and  the  principal  conveyed  to  her  children  in  fee,  the  gift  to 
the  children  being  bad  for  remoteness,  the  modification  of  the  devise  is 
rejected,  and  each  granddaughter  takes  a  fee.  In  such  a  case  it  may  be 
said  that  there  is  a  general  intent  and  a  particular  intent,  and  that  the 
latter  is  sacrificed  to  the  former;  but  there  is  no  change  of  devisees;  to 
certain  persons  fees  simple  are  given,  and  then  those  are  cut  down  to 
life  estates  for  a  purpose;  the  purpose  failing,  the  cut  down  is  rejected 
by  the  court,  and  the  fees  simple  revive,  but  to  the  same  persons.  Again, 
the  testator  has  himself  distinguished  and  separated  the  general  intent  from 
the  particular  intent.  When  he  has  not  done  this  and  the  only  gift 
is  to  granddaughters  for  life  with  remainders  in  fee,  a  granddaughter 
will  only  take  a  life  estate;  in  order  for  a  granddaughter  to  take  the 
fee,  there  must  be  a  distinct  gift  to  her  of  the  fee,  and  afterwards  a 
separate  modification.1 

§  881.  E.  The  history  of  the  doctrine  of  general  and  particular 
intent  in  the  law  is  well  known.  It  was  first  introduced  in  Robin- 

1  Whitehead  t;.  Bennett,  22  L.  J.  Ch.  1020.  See  §§  423  et  seg.t 
ante. 


620  THE   RULE  AGAINST  PERPETUITIES. 

son  v.  Robinson1  in  the  attempt  to  explain  the  Rule  in  Shelley's 
Case  as  a  rule  of  construction;  it  produced  the  hopeless  tangle  of 
decisions  of  which  Lord  Eldon  has  said,  "The  mind  is  overpowered 
by  their  multitude,  and  the  subtlety  of  the  distinctions  between 
them;"  2  and  it  was  only  when  the  doctrine  of  general  and  particu- 
lar intent  was  repudiated,  and  it  became  firmly  settled  that  the 
Rule  in  Shelley's  Case  was  not  a  rule  of  construction,  not  a  rule, 
however  artificial,  to  discover  intention,  but  a  rule  the  object  of 
which  was  to  defeat  intention,  that  any  order  was  introduced  into 
that  chaos.  Thus  Lord  Redesdale,  in  Jesson  v.  Wright: 3  "That 
the  general  intent  should  overrule  the  particular,  is  not  the  most 
accurate  expression  of  the  principle  of  decision.  The  rule  is  that 
technical  words  shall  have  their  legal  effect,  unless,  from  subse- 
quent inconsistent  words,  it  is  very  clear  that  the  testator  meant 
otherwise."  So  Lord  Denman,  in  Doe  v.  Gallini: 4  "The  doctrine 
that  the  general  intent  must  overrule  the  particular  intent  has  been 
much,  and  we  conceive  justly,  objected  to  of  late,  as  being,  as  a 
general  proposition,  incorrect  and  vague,  and  likely  to  lead  in  its  ap- 
plication to  erroneous  results."  8  The  doctrine  "is  now  exploded."  • 
In  the  fourth  edition  of  Jarman  on  Wills  7  is  an  elaborate  discussion, 
proving  the  futility  of  the  doctrine;  but  in  the  fifth  edition 8  the  doc- 
trine is  dealt  with  as  now  obsolete,  and  only  a  short  note  inserted. 

§  882.  This  piece  of  legal  history  is  full  of  instruction.  The  Rule 
in  Shelley's  Case  is  not  a  rule  for  interpretation,  it  is  a  rule  the  object 
of  which  is  to  defeat  intention.  Courts  struggled  to  deal  with  it  as  a 
rule  of  construction,  and  instead  of  saying  that  the  testator  meant 
so  and  so,  but  the  Rule  forbade  this  intention  being  carried  out,  they 
strove  to  divide  the  testator's  intention  into  two  parts,  one  part  which 
agreed  with  the  Rule,  and  which  they  called  the  general  intent,  and 
another  part  which  could  not  be  made  to  square  with  Rule,  and  which 
they  called  the  particular  intent,  and  they  professed  to  sacrifice  the 
latter  to  the  former,  and  said  they  were  carrying  out  the  general  intent, 
when  in  truth  both  general  and  particular  intent  alike  were  defeated 

1  1  Burr.  38.  6  See  Hayes,  Principles,  pp.  44, 

*  Jesson  v.  Wright,  2  Bligh,  1,      110. 

60.  •  Tud.  L.  C.  on  R.  P.  (4th  ed.) 

»  2  Bligh,  1,  56,  57.  350. 

«  5  B.  &  Ad.  621,  640.  7  Vol.  ii.  p.  484. 

•  Vol.  ii.  p.  1312,  note. 


APPENDIX.  621 

by  the  Rule.  The  consequence  was  an  unspeakable  quagmire,  of 
which  no  one  can  have  a  notion  who  has  not  ventured  into  it,  and  out 
of  which  escape  was  finally  had  only  by  the  total  repudiation  of  the 
theory  of  general  and  particular  intent,  and  by  a  firm  grasp  on  the 
principle  that  the  object  of  the  Rule  is  to  defeat  intention. 

§  883.  The  Rule  against  Perpetuities  is,  in  like  manner,  a  positive 
rule  intended  to  defeat  intention.  To  quote  from  the  case  of  Dun- 
gannon  v.  Smith:1  "The  existence  of  the  Rule  as  to  Perpetuities  is 
certainly  no  reason  for  altering  the  construction  of  the  bequest."  Per 
Maule,  J.  " Our  first  duty  is  to  construe  the  will;  and  this  we  must  do, 
exactly  in  the  same  way  as  if  the  Rule  against  Perpetuity  had  never 
been  established,  or  were  repealed  when  the  will  was  made;  not  varying 
the  construction  in  order  to  avoid  the  effect  of  that  rule,  but  inter- 
preting the  words  of  the  testator  wholly  without  reference  to  it." 
Per  Parke,  B.2 

§  884.  That  is  not  what  the  Supreme  Court  of  New  Hampshire 
has  done  in  Edgerly  v.  Barker;  instead  of  saying  that  the  testator 
meant  a  gift  to  those  persons  who  were  his  grandchildren  and  their 
issue,  when  the  youngest  living  grandchild  reached  forty,  and  then 
applying  the  rule,  finding  the  gift  was  beyond  the  limits  and  cut- 
ting it  off,  the  Court  has  striven  to  divide  the  testator's  intention 
into  two  parts,  part  which  is  consistent  with  the  Rule,  which  they 
call  the  general  intent,  and  part  which  will  not  square  with  the 
Rule,  which  they  call  the  particular  intent,  and  then  has  proceeded 
to  sacrifice  the  latter  to  the  former,  when  in  truth  it  has  been  sub- 
stituting a  new  intent,  and  giving  the  property  to  a  set  of  persons 
different  from  those  to  whom  the  testator  gave  it.3 

1  12  Cl.  &  F.  546,  578,  599.  the  event  of  a  person  not  born,  nor 

2  See  §§  629  et  seq.,  ante.  en  venire  sa  mere,  at  the  creation  of 

3  The  argument  upon  which  the  such  future  estate  or  interest  at- 
learned    counsel    for    the    trustees  taining   or   not   attaining   an   age 
chiefly  relied  was  that  the  English  greater  than  twenty-one,  the  set- 
Commissioners  on  the  Law  of  Real  tlor  or  testator  shall  be  deemed  to 
Property,   in  their  Third  Report,  intend  the  age  of  twenty-one. 

p.  70,  had  recommended  the  pas-  "20.  Where  an  estate  or  in- 
sage  of  a  statute  which  should  pro-  terest  shall  be  made  determinable 
vide,  among  other  matters,  as  either  by  the  original  limitation 
follows: —  thereof,  or  by  virtue  of  any  pro. 
"19.  Where  a  future  estate  or  viso,  condition  or  agreement  upon 
interest  shall  be  limited  to  vest  on  the  event  of  a  person  not  born,  nor 


622 


THE    RULE   AGAINST   PERPETUITIES. 


§  885.   Legal  history,  like  other  history,  repeats  itself;  here  is  the 
Supreme  Court  of  New  Hampshire  taking  the  first  step  in  that  chase 


en  venire  sa  mere,  at  the  creation 
of  such  future  estate  or  interest  at- 
taining or  not  attaining  an  age 
greater  than  twenty-one,  the  set- 
tlor or  testator  shall  be  deemed  to 
intend  the  age  of  twenty-one." 

But  upon  this  argument  it  is  to 
l>e  remarked:  — 

1.  That   this   statute   was   not 
recommended  by  the  Commission- 
ers as  declaratory  of  the  common 
law,  but  as  an  innovation. 

2.  That  while  so  many  of  the 
recommendations  of  the  Commis- 
sioners  were   adopted   by   Parlia- 
ment, this  never  has  been. 

3.  That   other   changes   in   the 
common  law  recommended  by  the 
Commissioners,    and    at    least    as 
beneficial,  have  never  been  adopted 
in  New  Hampshire.    For  instance, 
the  rule  in  question  is  mercy  and 
wisdom  combined  compared  with 
the  rule  which  requires  a  freehold 
to  support  a  contingent  remainder, 
and  yet  this  last  has  been  upheld 
in  New  Hampshire  with  uncalled- 
for  severity. 

4.  That  the  Commissioners,  feel- 
ing the  great  danger  of  tampering 
with  the  content  of  the  doctrine  of 
remoteness,  or  of  attempting  to  dis- 
tinguish between  primary  and  sec- 
ondary intent,  made  an  arbitrary 
rule  that  when  a  testator  says  21 
4-  x  years,  he  shall  be  conclusive- 
ly presumed  to  mean  twenty-one 
years;   and  that   this  is  a  pretty 
strong  thing  even  for  a  statute. 

5.  That  the  case  of  a  contingent 
gift  to  a  shifting  class,  such  as  arose 
under   the   Barker   will,    was   not 
within  the  purview  of  the  contem- 


plated provisions.  Those  provi- 
sions were  intended  to  deal  with 
individuals,  not  with  changing 
classes;  the  estate  dealt  with  is  one 
limited  to  vest,  not  on  a  class,  but 
on  a  person  reaching  or  not  reach- 
ing a  certain  age.  The  cases  in 
the  minds  of  the  Commissioners 
were  of  a  nature  like  this:  "To  A. 
for  life,  remainder  to  his  eldest  son 
in  fee,  but  if  he  should  die  before 
he  reaches  twenty-five  without 
leaving  issue  living  at  his  death,  to 
A.'s  second  son  in  fee,  but  if  such 
second  son  should  die  before  he 
reaches  twenty-five  without,  &c., 
then  to  A.'s  third  son,"  &c.  The 
Commissioners  intended  to  provide 
that  if  a  gift  to  A.  was  followed, 
on  a  contingency  which  might  not 
occur  until  21  +  x  years,  by  a  gift 
to  B.,  21  should  be  substituted  for 
21  +  x,  but  they  did  not  intend 
that  C.  should  be  substituted  for 
B.,  which  is  precisely  what  the 
New  Hampshire  Court  has  done. 
It  is  very  noticeable  that  in  their 
Report  the  Commissioners  say: 
"Sometimes  a  limitation  is  made  to 
depend  on  the  event  of  unborn 
persons  attaining  or  not  attaining 
some  age  greater  than  twenty- 
one;"  but  when  they  come  to  sum 
up  their  conclusions  in  the  exact 
language  of  a  proposed  statute, 
seeing  perhaps  a  possible  danger 
of  misconstruction,  they  change  the 
plural  into  the  singular,  showing 
that  they  mean  to  deal  with  an  in- 
dividual and  not  with  a  changing 
class.  In  other  words,  the  Com- 
missioners obviously  had  in  mind 
the  advancing  of  the  time  for  a 


APPENDIX.  623 

after  the  will  o'  the  wisp  of  general  and  particular  intent  which  the 
Court  of  King's  Bench  began  more  than  a  hundred  years  ago,  and 
which,  after  long  wanderings  and  stumblings  and  groanings  of  spirit, 
it  has  now  finally  abandoned. 

§  886.   IV.  Applications  of  the  New  Hampshire  Doctrine. 

A.  Take  first  the  present  case.  Here  was  a  gift  to  grandchildren 
when  they  reached  forty,  the  Court  cut  it  down  to  grandchildren 
when  they  reached  twenty-one,  but  why  take  that  date?  Why  not 
give  it  to  the  grandchildren  at  once,  without  waiting  till  they  reach 
twenty-one?  The  only  answer  would  seem  to  be,  "Although  we 
cannot  put  off  the  period  of  distribution  as  late  as  the  testator  wished, 
we  will  put  it  off  as  long  as  we  can."  But  that  the  Court  has  not  done. 
Why  not  order  the  fund  to  be  distributed  among  those  grandchildren 
who  are  living  at  the  end  of  twenty-one  years  from  the  death  of  both 
children?  Or,  better  still,  why  not  make  the  time  of  selection  to  be 
twenty-one  years  after  the  death  of  both  the  testator's  children  and  of 
all  his  grandchildren  living  at  his  death?  Or,  again,  why  not  make  it 
twenty-one  years  after  the  death  of  all  the  students  now  at  Dart- 
mouth College?  What  can  be  said  of  the  time  selected  by  the  Court, 
more  than  for  any  or  all  these? 

§  887.  B.  Or  if  there  be  special  circumstances  in  this  case  point- 
ing to  twenty-one,  how  about  a  case  where  there  are  no  such  special 
circumstances? 

§  888.  C.  Again,  (what  the  devise  might  easily  have  been  in 
this  case),  —  to  such  of  the  testator's  grandchildren  when  the  young- 
est reaches  forty  as  are  then  of  temperate  habits.  Would  a  gift  to 
such  of  the  grandchildren  as  were  not  drunkards  at  twenty-one 
satisfy  the  general  intent  of  the  testator? 

§  889.  D.  A  gift  to  A.,  for  life,  after  his  death  to  any  widow  he 
may  leave  for  life,  and  on  the  death  of  such  widow  to  such  of  his  chil- 
dren as  are  then  living.  Is  this  time  to  be  cut  down,  and  if  so,  to  what 
period  must  survivorship  be  referred?  The  death  of  the  husband? 
Twenty-one  years  after  the  death  of  the  husband?  The  death  of  any 
wife  born  in  the  testator's  lifetime?  Twenty-one  years  after  the  death 
of  any  wife  born  in  the  testator's  lifetime? 

legacy  to  A.  so  as  to  enable  A.  to  to  take  property  given  to  one  set 

take;    but   there   is   no    evidence,  of  legatees  and  transfer  it  to  an- 

either  in  the  Report  or  in  the  Prop-  other.     To  do  that  has  been  re- 

ositions,    that   they   ever   contem-  served  to  the  Supreme  Court  of 

plated  applying  the  method  so  as  New  Hampshire. 


624  THE    RULE   AGAINST   PERPETUITIES. 

§  890.  E.  To  a  church  for  a  parsonage,  but,  whenever  it  is  no 
longer  used  as  a  parsonage,  then  to  A.  and  his  heirs.  Here  is  a  general 
intent  to  have  the  property  go  over;  under  certain  circumstances 
this  can  be  done,  under  other  circumstances  it  cannot;  why  not 
carry  out  that  general  intent  under  the  former  circumstances,  if  it 
cannot  be  under  the  latter?  Why  not  allow  it  if  the  parsonage  is 
given  up  within  twenty-one  years  after  the  testator's  death?  Or 
within  twenty-one  years  after  the  death  of  all  the  present  members 
of  the  First  Regiment  of  New  Hampshire  Militia? 

§891.  F.  To  the  person  who  shall  be  Chief  Justice  of  New  Hamp- 
shire fifty  years  from  to-day.  Is  Chief  Justice  Doe  entitled  to  that 
gift?  Is  the  Chief  Justice  who  shall  be  in  office  twenty-one  years  from 
now  entitled?  Or  shall  the  Chief  Justice  who  attends  the  funeral  of 
the  last  member  of  the  New  Hampshire  bar  now  living  take  it? 

§  892.  Here  are  cases,  not  recondite  cases,  but  such  as  may  occur 
to  one  currents  calamo.  They  could  be  multiplied  indefinitely.  Out- 
side of  New  Hampshire  not  merely  would  these  cases  present  no 
difficulty  to  the  courts,  but  any  decently  instructed  lawyer  could 
answer  any  of  them  promptly  and  with  certainty.  In  New  Hamp- 
shire, the  more  learned  and  acute  the  lawyer,  the  greater  the  perplexity 
in  which  such  cases  would  plunge  him. 

§  893.  In  fact,  this  novel  doctrine  substitutes  for  the  set  of  devisees 
named  by  the  testator  another  set  selected  out  of  an  infinite  number 
by  the  arbitrium  of  the  Court.1 


H. 

GIFTS  LTO    INDEFINITE    PERSONS   FOR    NON-CHARITABLE 

PURPOSES.* 

§  894.  A  devise  or  bequest  for  a  charitable  purpose  is  valid  al- 
though there  be  no  definite  cestui  que  trust.  The  State,  through 
the  attorney-general  and  the  courts,  will  compel  the  trustee,  or,  if 
need  be,  will  appoint  a  trustee,  to  carry  out  the  purpose.  But  this  is 
an  exception  to  the  general  rule.  The  general  rule  is  that  every  trust 

1  See    1    Tiffany,    Real    Prop.  a  This    Appendix    is    extracted 

§  157.    Cf.  Hussey  v.  Sargent,  116      from  an  article  in  15  Harv.  Law 
Ky.  53;  38  Am.  Law  Rev.  683.  Rev.  509. 


APPENDIX.  625 

without  a  definite  cestui  que  trust  is  void.  When  there  has  been 
an  attempt  to  create  such  a  trust  by  will,  and  it  is  clear  that  the 
trustee  was  not  intended  to  hold  beneficially,  there  is  a  resulting 
trust  for  the  heir,  next  of  kin,  residuary  devisee,  or  residuary  lega- 
tee of  the  testator,  as  the  case  may  be.  The  court  cannot  carry 
out  or  protect  the  trust  which  the  testator  has  tried  to  create,  and 
so  it  gives  the  property  to  the  person  representing  the  testator,  leav- 
ing it  to  him  to  carry  out  the  purpose  if  he  sees  fit.1 

§  895.  In  the  leading  case  of  Morice  v.  Bishop  of  Durham  Sir 
William  Grant  puts  the  doctrine  thus:  "There  can  be  no  trust,  over 
the  exercise  of  which  this  court  will  not  assume  a  control;  for  an 
uncontrollable  power  of  disposition  would  be  ownership  and  not 
trust.  If  there  be  a  clear  trust,  but  for  uncertain  objects,  the  property 
that  is  the  subject  of  the  trust  is  undisposed  of;  and  the  benefit  of 
such  trust  must  result  to  those  to  whom  the  law  gives  the  ownership 
in  default  of  disposition  by  the  former  owner.  But  this  doctrine  does 
not  hold  good  with  regard  to  trusts  for  charity.  Every  other  trust 
must  have  a  definite  object.  There  must  be  somebody  in  whose  favor 
the  court  can  decree  performance."  2 

§  896.  Under  the  head  of  gifts  to  trustees  for  non-charitable, 
indefinite  objects  come  also  cases  where  a  gift,  devise,  or  legacy  is 
made  to  an  unincorporated  society  or  club.  If  the  gift  is  in  truth  to 
the  present  members  of  the  society,  described  by  their  society  name, 
so  that  they  have  the  beneficial  use  of  the  property,  and  can,  if  they 
please,  alienate  it,  and  put  the  proceeds  in  their  own  pockets,  then 
there  is  a  present  gift  to  individuals  which  is  good.3  But  if  the  gift  is 

1  Morice  v.  Bishop  of  Durham,  649.     Chamberlain  v.  Stearns,  111 

9  Ves.  399;  10  Ves.  521.    James  Mass.  267.     Nichols  v.  Allen,  130 

v.  Allen,  3  Mer.  17.     Ommanney  Mass.    211.     Adye    v.    Smith,    44 

v.  Butcher,  T.  &  R.  260.    Vezey  v.  Conn.  60.    Holland  v.  Alcock,  108 

Jamson,  1  S.  &  St.  69.    Fowler  v.  N.  Y.  312.   Stewart  v.  Green,  Ir.  R. 

Garlike,  1  Russ.  &  M.  232.     Wil-  5  Eq.   470.     Browne  v.  King,  17 

liams  v.  Kershaw,  5  Cl.  &  F.  Ill,  L.  R.  Ir.  448.     In  re  Cullimore's 

note.    Ellis  ».  Selby,  1  Myl.  &  Cr.  Trusts,  27  L.  R.  Ir.  18.    See  Mc- 

286.   Stubbsv.  Sargon,  2  Keen,  255;  Hugh  v.  McCole,  97  Wis.  166;  1 

3  Myl.  &  Cr.  507.     Harris  v.  Du  Jarm.  Wills  (6th  ed.)  900. 
Pasquier,  26  L.  T.  R.  689.    Buckle  2  9  Ves.  399,  404,  405. 

v.  Bristow,  10  Jur.  N.  8.  1095.    In  *  Cocks  v.  Manners,  L.  R.   12 

re  Jarman's  Estate,  8  Ch.  D.  584.  Eq.  574.    In  re  Clarke,  [1901]  2  Ch. 

In  re  Nottage,  [1895]  2  Ch.  (C.  A.)  110.     Old  South  Soc.  v.  Crocker. 


626 


THE  RULE  AGAINST  PERPETUITIES. 


intended  for  the  good  not  only  of  the  present  but  of  future  members,  so 
that  the  present  members  are  in  the  position  of  trustees,  and  have  no 
right  to  appropriate  the  property  or  its  proceeds  for  their  personal 
benefit,  then  the  gift  is  invalid.1  It  is  intended  to  be  in  trust  for  the 
society  as  such,  which  is  a  continuing  entity  in  the  contemplation 
of  the  donor,  but  which  is  not  recognized  by  the  law  as  having  any 
standing  in  the  courts.2 

§  897.  Those  cases  where  gifts  to  trustees  for  non-charitable  pur- 
poses have  been  held  void  suggest  a  question  which  at  first  sight 
seems  rather  alarming.  Very  many  clubs  or  other  institutions  not 
charitable  have  property  held  by  trustees.  Are  these  trusts  void, 
and  cannot  the  trustees  expend  the  income  for  the  benefit  of  the 
club?  In  answer  to  this  question  two  suggestions  can  be  made: 
First.  The  delivery  of  the  property  to  the  trustees  is  a  good  man- 
date, and  the  trustees  can  dispose  of  it  in  accordance  with  the  man- 
date until  the  mandate  is  revoked.3  Second.  There  is  in  most  cases 
a  promise,  express  or  implied,  on  the  part  of  the  trustee  to  apply  the 
property  delivered  to  him  for  the  benefit  of  the  club,  he  can  be  held 
on  the  contract,  and  the  person  delivering  the  property  has  a  remedy 


119  Mass.  1.  Henrion  v.  Bonham, 
O'Leary  on  Religious  and  charita- 
ble Uses,  89;  see  Stewart  v.  Green, 
Ir.  R.  5.  Eq.  470.  In  re  Delany's 
Estate,  9  L.  R.  Ir.  226.  In  re 
Smith,  [1914]  1  Ch.  937.  In  re 
Drummond,  [1914]  2  Ch.  90.  See 
Anon.,  3  Atk.  277;  Brown  v.  Dale, 
9  Ch.  D.  78;  Re  New  South  Meet- 
ing House,  13  Allen,  497;  Coe  v. 
Washington  Mills,  149  Mass.  543; 
Swift  v.  Easton  Beneficial  Soc.,  73 
Pa.  362;  Burke  v.  Roper,  79  Ala. 
138;  Stewart  v.  Green,  Ir.  R.  5  Eq. 
470;  Re  Wilkinson's  Trusts,  19 
L.  R.  Ir.  531;  Bradshaw  v.  Jack- 
man,  21  L.  R.  Ir.  12. 

1  Thomson  v.  Shakespear,  Johns. 
612;  1  De  G.  F.  &  J.  399.  Came 
v.  Long,  2  De  G.  F.  &  J.  75.  Re 
Dutton,  4  Ex.  D.  54.  In  re  Shera- 
ton's Trusts,  [1884]  W.  N.  174.  In 
re  Good,  [1905]  2  Ch.  60.  In  re 


Clifford,  81  L.  J.  Ch.  220.  Trout- 
man  v.  De  Boissiere,  66  Kan.  1. 
Stewart  v.  Green,  Ir.  R.  5  Eq.  470. 
Hogan  v.  Byrne,  13  Ir.  C.  L.  166. 
Kehoe  v.  Wilson,  7  L.  R.  Ir.  10. 
Morrow  v.  McConville,  11  L.  R.  Ir. 
236.  Healy  v.  A.  G.,  [1902]  1  I.  R. 
342.  See  Carbery  v.  Cox,  3  Ir.  Ch. 
231;  In  re  Clark's  Trust,  1  Ch. 
D.  497;  In  re  Amos,  [1891]  3  Ch. 
159;  Re  Swain,  99  L.  T.  R.  604; 
In  re  Drummond,  [1914]  2  Ch.  90; 
Lennon's  Estate,  152  Cal.  327; 
In  re  Ralston,  5  Tasmanian  L.  R. 
68;  Queensland  Trustees  v.  Wood- 
ward, [1912]  Queensl.  State  Rep. 
291;  1  Jarm.  Wills  (6th  ed.)  278. 

2  Hogan  v.  Byrne,  13  Ir.  C.  L. 
R.  166.  Morrow  v.  McConville,  11 
L.  R.  Ir.  236,  243.  See  Foulke, 
Treatise,  §  723. 

1  See  Coe  v.  Washington  Mills, 
149  Mass.  543. 


APPENDIX. 


627 


for  breach  of  contract.1  When  the  money  for  the  club  is  raised  by  sub- 
scription, there  may  be  a  contractual  relation,  not  only  between  a  sub- 
scriber and  the  trustee,  but  between  the  subscribers  themselves,  which 
would  prevent  the  withdrawal  of  a  subscription.  But  it  seems  that 
ordinarily  a  gift  by  will  for  a  non-charitable  club  or  society  (not  to 
be  in  the  disposition  for  their  own  benefit  of  the  immediate  members) 
can  be  avoided  by  the  heirs  or  next  of  kin  of  the  testator.  In  such  a 
case  there  is  no  contract.2 

§  898.  In  many  cases  in  which  the  validity  of  a  devise  has  in 
truth  depended  on  whether  it  contravened  the  doctrine  of  Morice 
v.  Bishop  of  Durham,  the  courts  have  said  or  suggested  that  it  de- 
pended on  whether  a  "perpetuity"  was  created.3  Particularly  is 
this  so  in  Ireland.4  And  if  we  take  "perpetuity"  in  its  sense  of  "an 


1  Oilman  v.  McArdle,  99  N.  Y. 
451. 

*  On  gifts  to  "College  Frater- 
nity Chapters"  see  42  Am.  Law 
Rev.  168,  180  et  seq. 

3  Thomsons.  Shakespear,  Johns. 
612;  s.  c.  1  De  G.  F.  &  J.  399. 
Game  ».  Long,  2  De  G.  F.  &  J. 
75.  Rickard  v.  Robson,  31  Beav. 
244.  Fowler  v.  Fowler,  33  Beav. 
616.  Hoare  v.  Osborne,  L.  R.  1 
Eq.  585.  In  re  Clark's  Trust,  1 
Ch.  D.  497.  Cocks  v.  Manners, 
L.  R.  12  Eq.  574.  Re  Button,  4 
Ex.  D.  54.  In  re  Dean,  41  Ch.  D. 
552.  Re  Jones,  79  L.  T.  R.  154. 
In  re  Clarke,  [1901]  2  Ch.  110.  Re 
Swain,  99  L.  T.  R.  604.  In  re  Clif- 
ford, 81  L.  J.  Ch.  220.  In  re 
Drummond,  [1914]  2  Ch.  90.  Piper 
v.  Moulton,  72  Me.  155.  Giles  v. 
Boston  Soc.,  10  Allen,  355.  Bates 
v.  Bates,  134  Mass.  110.  Leonard  v. 
Haworth,  171  Mass.  496.  Morse 
v.  Natick,  176  Mass.  510.  Kelly  v. 
Nichols,  17  R.  I.  306.  Sherman  v. 
Baker,  20  R.  I.  446.  Coit  v.  Corn- 
stock,  51  Conn.  352.  Angus  v. 
Noble,  73  Conn.  56.  Hartson  v. 
Elden,  50  N.  J.  Eq.  522.  Corle's 


Case,  61  N.  J.  Eq.  409.  Van 
Syckel  v.  Johnson,  70  Atl.  Rep.  657 
(N.  J.,  1908).  Johnson  v.  Holi- 
field,  79  Ala.  423.  Troutman  v.  De 
Boissiere,  66  Kan.  1.  Yeap  Cheah 
Neo  v.  Ong  Cheng  Neo,  L.  R.  6 
P.  C.  381,  394,  395.  Fraser  v.  Cam- 
pion, 29  N.  Z.  1009.  See  Estate 
of  Gay,  138  Cal.  552;  Tud.  Char. 
(3d  ed.)  57. 

4  Stewart  v.  Green,  Ir.  R.  5  Eq. 
470.  Beresford  v.  Jervis,  11  Ir.  L. 
T.  R.  128.  Kehoe  v.  Wilson,  7  L.  R. 
Ir.  10.  In  re  Delany's  Estate,  9 
L.  R.  Ir.  226.  Morrow  v.  M'Conville, 
11  L.  R.  Ir.  236.  Dorrian  v.  Gil- 
more,  15  L.  R.  Ir.  69.  In  re  Wil- 
kinson's Trusts,  19  L.  R.  Ir.  531. 
Bradshaw  v.  Jackman,  21  L.  R.  Ir. 
12.  Reichenbach  v.  Quin,  Id.  138. 
Armstrong  v.  Reeves,  25  L.  R.  Ir. 
325.  Small  v.  Torley,  Id.  388. 
Brannigan  v.  Murphy,  [1896]  1 1.  R. 
418.  Webb  v.  Oldfield,  [1898]  1  I. 
R.  431.  Toole  v.  Hamilton,  [1901] 
1  I.  R.  383.  Roche  v.  M'Dermott, 
Id.  394.  Healey  v.  A.  G.,  [1902] 
1  I.  R.  342.  Laverty  v.  Laverty, 
[1907]  1  I.  R.  9.  See  In  re  Moore, 
[1901]  1  Ch.  36. 


628  THE   RULE   AGAINST   PERPETUITIES. 

inalienable  interest,"  the  expression  is  not  incorrect.  If  there  is  no 
one  who  can  alienate  the  beneficial  interest,  the  beneficial  interest  is 
inalienable.  But  in  some  of  these  cases  the  courts  speak  as  if  the  test 
of  the  validity  of  such  devises  was  their  violating  or  not  violating  the 
Rule  against  Perpetuities,  where  Perpetuity  is  used  in  its  sense  of  Re- 
moteness. This  it  is  submitted  is  incorrect.  The  vice  in  such  devises 
is  not  that  the  interests  of  the  cestuis  que  trust  are  too  remote,  but  that 
there  are  no  cestuis  que  trust  at  all.1 

§  899.  In  several  instances  the  reference  to  the  Rule  against  Per- 
petuities is  slight.  Thus:  "The  property  comprised  in  the  devise 
is  therefore  to  be  taken  out  of  commerce  and  to  become  inalienable, 
not  for  a  life  or  lives  in  being  and  twenty-one  years  afterwards,  but 
for  so  long  as  ten  of  the  members  of  the  society  shall  remain.  This 
seems  to  me  a  purpose  which  the  law  will  not  sanction  as  tending 
to  a  perpetuity." 2  "The  question  ...  is  whether  the  several 
objects  of  this  gift  are  charitable.  If  they  are  charitable  they  are 
good;  if  they  are  not,  they  are  bad  as  coming  within  the  rule  against 
perpetuity."8  "It  would,  I  conceive,  be  an  extreme  stretch  of  the 
rule  against  perpetuity  to  hold  that  it  applies  to  a  gift  of  this  sort."  4 
"The  bequest"  to  keep  up  a  monument  "is  invalid  as  repugnant  to 
the  rule  against  perpetuities.  ...  A  private  trust  cannot  be  created, 
so  as  to  operate  the  inalienability  of  property  beyond  the  period  pre- 
scribed by  the  rule."  5  "The  gift  there,  if  not  charitable,  must  have 
failed,  as  being  contrary  to  the  rule  against  perpetuities."6  "The  pro- 
vision in  the  codicil  as  regards  the  grave  undoubtedly  transgresses 
the  rule  against  perpetuity  if  it  imposes  an  obligation  to  continue 
spending  money  on  the  grave  for  an  indefinite  time."  7 

1  2  Tiffany,  Real   Prop.   §  500.  ton,  V.  C.,  In  re  Wilkinson's  Trusts, 

See  5  111.  Law  Rev.  379;  10  Mich.  19  L.  R.  Ir.  531,  536. 
Law  Rev.  31,  35.  6  Per    Clopton,   J.,    Johnson  v. 

1  Per  Campbell,  L.  C.,  Carne  v.  Holifield,   79  Ala.   423,   424.     See 

Long,  2  De  G.  F.  &  J.  75,  80,  quoted  Burke  v.  Burke,  259  111.  262.     Cf. 

with  approval  per  Kelly,  C.  B.,  in  Matter  of  Fisher,  2  Connoly,  75, 

Re  Button,  4  Ex.  D.  54,  58.  and  Driscoll  v.  Hewlett,  132  N.  Y. 

3  Per  Kindersley,  V.  C.,  Hoare  Ap.  D.  125,  under  the  New  York 
v.    Osborne,    L.    R.    1    Eq.    585,  Statute. 

587.  •  In  re  Delany's  Estate,  9  L.  R. 

4  Per  Wickens,  V.  C.,  Cocks'  v.  Ir.  226,  233;  and  so  In  re  Podmore, 
Manners,  L.  R.  12  Eq.  574,  586,  6  Argus  Law  R.  (Viet.)  7. 
quoted  with  approval  per  Chatter-  7  Per  Porter,  M.  R.,    Roche  v. 


APPENDIX.  629 

§  900.  The  following  Irish  cases  should  be  noted  more  particularly: 
Morrow  v.  M'Convitte.1  Here  a  testator  directed  the  rent  of  property 
"to  be  applied  to  the  use  and  benefit  of  the  Roman  Catholic  convent" 
at  L.  Chatterton,  V.  C.,  held  that  the  gift  was  not  to  the  members  of 
the  convent  as  individuals,  but  in  trust  for  a  non-charitable  commu- 
nity which  was  incapable  of  taking  it,  and  that  the  gift  was,  therefore, 
void  within  the  doctrine  of  Morice  v.  Bishop  of  Durham;  but  he  also 
held  "that  a  gift,  not  charitable,  to  a  religious  community,  including 
not  only  the  existing  members,  but  also  all  persons  who  should  be,  or 
become  thereafter,  members  of  it,  during  a  period  capable  of  extending 
beyond  the  legal  limits  prescribed  by  the  rule  against  perpetuities,  is 
void."  The  reason  first  given  for  the  invalidity  of  the  gift  is,  I  submit, 
the  correct  and  sufficient  reason. 

§  901.  Bradshaw  v.  Jackman.*  In  this  case  there  was  a  bequest 
in  trust  for  the  community  of  a  convent.  Porter,  M.  R.,  said,  "There 
are  undoubtedly  two  senses  hi  which  the  word  'community '  may  be 
used.  It  may  mean  the  aggregate  of  the  persons  living  in  a  particular 
place,  or  answering  a  particular  description,  at  a  given  tune.  .  .  . 
Or  it  may  mean  the  aggregate  of  the  members  of  an  order  or  institution 

from  time  to  time,  for  ever,  or  so  long  as  it  continues  to  exist 

In  the  latter  sense,  a  gift  which  in  terms  included  in  its  objects  persons 
not  in  existence,  and  who  might  not  come  into  existence  until  a  time 
beyond  the  legal  limit,  would  be  clearly  void  for  remoteness  and  un- 
certainty, unless  saved  by  being  charitable.  ...  In  my  opinion,  there 
is  nothing  to  drive  me  to  the  meaning  which  would  make  the  bequest 
err  against  the  rule  as  to  perpetuities."  The  Master  of  the  Rolls  held, 
that  is,  that  the  bequest  was  for  the  benefit  of  a  class  consisting  of 
certain  specific  living  persons,  and  was  therefore  good;  but  he  said 
that  if  the  bequest  had  been  for  the  benefit  of  a  class  which  might 
comprise  within  its  numbers  persons  not  coming  into  existence  till  a 
remote  time,  it  would  have  been  bad,  a  dictum  which  is  true  enough; 
but  the  real  distinction  in  the  intention  of  the  testator  is  not  between 
a  gift  to  a  class  consisting  of  certain  individuals,  and  a  gift  to  a  class 
consisting  of  other  individuals,  but  between  a  gift  to  individuals  and 
a  gift  to  a  society  as  a  continuing  entity,  abstracted  from  anyindi- 

M'Dermott,  [1901]    1    I.    R.   394,  »  11  L.  R.  Ir.  236,  246,  247. 

399.    See  Troutman  v.  De  Boissiere,  *  21  L.  R.  Ir.  12,  17,  18. 

66  Kan.  1,  4. 


630  THE   RULE  AGAINST   PERPETUITIES. 

viduals,  which  last  is  not  recognized  by  the  law  as  having  any  standing 
in  courts,  being  neither  a  corporation  nor  a  charity. 

§  902.  Armstrong  v.  Reeves.1  In  this  case  a  testator  gave  a  legacy 
"to  the  Society  for  the  Abolition  of  Vivisection,  payable  upon  the  re- 
ceipt of  the  Treasurer  for  the  time  being; "  and  he  gave  the  residue  of 
his  estate  "to  the  Society  of  Carlsruhe  for  the  Protection  of  Animals, 
to  be  paid  to  the  Treasurer  for  the  time  being  of  the  said  society." 
Chatterton,  V.  C.,  held  that  the  gifts  were  charitable;  and  also  that 
even  if  they  were  not  charitable  they  were  valid,  because  there  was  no 
indication  of  "an  intention  that  the  gifts  received  by  the  society  shall 
be  applied  in  a  manner  exceeding  the  limits  which  the  law  prescribes 
with  regard  to  perpetuity."  The  reason  first  above  given  was  a  valid 
and  sufficient  ground  for  sustaining  the  trust. 

§  903.  Small  v.  Torley.2  A  testator  gave  to  A.,  "the  present  Roman 
Catholic  clergyman  officiating  as  superior"  of  a  certain  church  or 
convent,  "or  the  clergyman  filling  that  office  at  the  time  of  my  de- 
cease, and  to  his  successors  from  time  to  time  so  officiating,"  an  annual 
sum  of  £10  for  fifty  years,  "in  trust  that  he  or  his  said  successors  during 
said  period"  shall  have  mass  celebrated  in  said  church  for  the  repose  of 
the  souls  of  the  testator  and  of  his  wife  and  parents.  This  gift  was 
held  to  be  bad  as  a  perpetuity;  and  so  it  was,  using  "perpetuity"  in 
its  primary  sense  of  "inalienable  interest;"  but  the  Court  (Porter, 
M.  R.)  considered  and  rejected  the  theory  that  this  trust  could  be 
sustained  for  the  life  of  the  present  incumbent,  thus  apparently  assum- 
ing that  if  the  trust  had  been  confined  to  his  life  it  would  have  been 
good.  Speaking  of  the  case  of  Dillon  v.  Reilly,3  the  Master  of  the 
Rolls  says:  "It  cannot  be  treated  as  a  decision  that  in  a  case  where 
words  are  used  which  purport  to  tie  up  property  beyond  legal  limits 
the  court  will  from  thence  carve  out  a  life  estate,  hold  it  good  to  that 
extent,  and  reject  the  rest." 

§  904.  Outside  of  Ireland  there  are  five  cases  to  notice.  The  first 
of  these  cases  is  Hornberger  v.  Hornberger*  A  testator  gave  all  his 
estate,  after  the  death  of  his  wife,  to  a  city  for  the  benefit  of  its  poor; 
"subject  to  the  following  exception,  to  wit:  the  flower  garden  and 
graveyard  where  my  child  Jettie  is  buried,  and  where  I  expect  my- 
self and  wife  to  be  buried  ...  is  not  to  be  sold  under  any  circum- 
stances, but  the  same  is  vested  in  trust  in  my  wife  for  and  during  her 

1  25  L.  R.  Ir.  325,  337.  •  Ir.  R.  10  Eq.  152. 

»  25  L.  R.  Ir.  388.  *  12  Heiak.  635. 


APPENDIX.  631 

natural  life,  and  at  her  death"  the  city  "are  to  act  as  trustees,  and  are 
1  to  hold  said  graveyard  and  flower  garden  in  trust,  and  out  of  my 
estate  to  keep  the  same  up."  The  court  held  that  there  was  a  good 
devise  for  charity;  they  say  that  if  the  testator  carved  "out  of  the 
charity  fund  a  fund  for  a  perpetuity,  which  must  fail,  we  are  not  at 
liberty,  because  of  the  dependent  and  illegal  devise,  to  avoid  the  whole 
will;  but,  rejecting  the  part  that  is  repugnant  to  law  and  public  policy, 
we  must  allow  the  part  which  is  lawful  to  be  the  will  of  the  testator; 
that  which  is  primary  and  valid  must  stand;  that  which  is  not  primary 
and  valid  must  fail."  All  that  is  said  about  the  wife's  life  estate  is 
in  this  sentence  at  the  end  of  this  opinion:  "The  trust  to  the  wife  of 
keeping  up  the  graveyard  and  flower  garden  during  her  life  is  lawful." 
The  nature  of  the  proceeding,  beyond  the  fact  that  it  was  a  bill  in 
equity,  does  not  appear.  It  was  not  a  bill  for  instructions,  for  the 
executrix  (presumably  the  wife)  was  not  the  complainant.  According 
to  the  reasoning  of  the  court  with  reference  to  the  city,  if  the  trust  to 
keep  up  the  grave  were  bad,  the  wife  would  take  the  estate  free 
from  the  trust;  and  it  does  not  appear,  nor  is  it  likely,  that  she 
neglected  to  keep  up  the  garden  and  graveyard,  and  that  this  was 
a  suit  to  compel  her  to  do  so.  The  sentence  last  above  quoted  must 
therefore  have  been  only  a  dictum.  It  is  to  be  observed  that  no 
question  of  the  Rule  against  Perpetuities  arose  in  the  case;  it  was  a 
question  not  of  a  future  but  of  a  present  interest;  and  the  dictum 
was  that  one  may  hold  property  for  life  on  an  indefinite  non-chari- 
table trust;  and  this,  it  is  submitted,  was  incorrect. 

§  905.  In  re  Dean.1  Here  there  was  a  gift  in  trust  for  the  support 
of  certain  animals.  North,  J.,  speaking  of  a  gift  for  the  repair  of  a 
monument,  said:  "I  know  of  nothing  to  prevent  a  gift  of  a  sum  of 
money  to  trustees,  upon  trust  to  apply  it  for  the  repair  of  such  a 
monument.  In  my  opinion,  such  a  trust  would  be  good,  although 
the  testator  must  be  careful  to  limit  the  time  for  which  it  is  to  last, 
because,  as  it  is  not  a  charitable  trust,  unless  it  is  to  come  to  an  end 
within  the  limits  fixed  by  the  rule  against  perpetuities,  it  would  be 
illegal.  But  a  trust  to  lay  out  a  certain  sum  in  building  a  monument, 
and  the  gift  of  another  sum  in  trust  to  apply  the  same  in  keeping  that 
monument  in  repair,  say,  for  ten  years,  is,  in  my  opinion,  a  perfectly 
good  trust."  * 

1  41  Ch.  D.  552,  557.  297,  901;  18  Jurid.  Rev.  (Scotch) 

z  1  Jarm.   Wills  (6th   ed.)  279,      136;  §  909  a,  post. 


632  THE   RULE  AGAINST   PERPETUITIES. 

§  906.  On  this  case  it  is  to  be  remarked  (1)  that  it  was  not  carried 
to  the  Court  of  Appeal;  (2)  that  the  decision  was  based  largely  on 
the  case  of  Mitford  v.  Reynolds,1  by  which  the  judge  felt  himself 
bound,  and  in  which  the  question  does  not  appear  to  have  been 
discussed;  (3)  that  the  judge  did  not  refer  to  Morice  v.  Bishop  of  Dur- 
ham; (4)  that  a  trust  for  the  perpetual  repair  of  a  monument  is  not 
obnoxious  to  the  Rule  against  Perpetuities,  for  that  rule  relates  to  the 
creation  of  future  interests,  and  has  nothing  to  do  with  present  interests, 
and  that,  if  a  trust  for  the  repair  of  a  monument  is  illegal,  it  is  because 
there  is  no  cestui  que  trust  with  an  alienable  interest,  not  because  the 
trust  is  to  begin  on  a  remote  contingency;  (5)  that  even  if  a  trust  which 
can  last  longer  than  twenty-one  years  after  lives  in  being  were  bad, 
then  this  trust  for  horses  and  'dogs  would  be  bad,  because  it  might  last 
conceivably  for  more  than  twenty-one  years  after  the  extinction  of 
all  human  lives.  It  is  a  novel  idea  that  the  validity  of  a  limitation 
over  (or  of  a  trust)  may  depend  upon  whether  the  limitation  must 
happen  (or  the  trust  determine)  within  the  lifetime  of  an  animal. 
Can  a  gift  over  be  made  to  take  effect  upon  the  death  of  any  animal 
however  longevous,  —  an  elephant,  a  crow,  a  carp,  a  crocodile,  or  a 
toad? 2 

§  907.  In  the  Weekly  Notes  for  1896,  p.  86,  is  found  the  following 
note: — 

"A  testator,  after  expressing  his  wish  to  be  buried  in  the  inclosure 
in  which  his  child  lay  in  the  churchyard  of  E.,  bequeathed  to  the 
rector  and  churchwardens  for  the  time  being  of  the  parish  church  £800 
Consols,  to  be  invested  in  their  joint  names,  the  interest  and  dividends 
to  be  derived  therefrom  to  be  applied,  so  long  as  the  law  for  the  time 
being  permitted,  in  keeping  up  the  inclosure,  and  decorating  the  same 
with  flowers.  Held,  that  the  gift  was  valid  for  at  least  a  period  of 
twenty-one  years  from  the  testator's  death,  and  semble  that  it  was 
not  charitable.  Pirbright  v.  Salwey,  Aug.  6.  Stirling,  J." 

The  case  is  not  reported  anywhere  else.  It  is  respectfully  sub- 
mitted that,  if  the  report  in  the  Weekly  Notes  is  correct,  the  decision 
cannot  be  sustained.  A  trust  for  the  repair  of  a  grave  is  bad,  not 
because  it  may  last  longer  than  lives  and  twenty-one  years,  but 

>  16  Sim.  105.  *  See   10   Mich.  Law  Rev.  31, 

39. 


APPENDIX.  633 

because  there  is  no  cestui  que  trust;  and  it  is  not  made  good  by  con- 
fining it  within  twenty-one  years.1 

§  908.  Leonard  v.  Haworth.2  Here  it  was  held  that  provisions 
in  a  will  for  paying  the  funeral  expenses  of  the  testator's  surviving 
widow  and  for  a  gravestone  for  her  were  not  necessarily  avoided 
by  the  widow's  having  waived  the  provisions  in  the  will.  There 
seems  to  be  no  objection  to  a  trust  to  pay  the  funeral  expenses  of 
A.  who  is  now  living,  nor  any  reason  why  such  trust  should  not  be 
enforced  at  the  suit  of  A.'s  executor.  But  the  Court  says:  "While 
a  testamentary  provision  for  the  preservation,  adornment,  and  repair 
of  a  private  monument  may  be  void  as  creating  a  perpetuity  for  a  use 
not  charitable,  this  provision  is  open  to  no  such  objection,  as  it  would 
be  completely  performed  upon  the  decease  of  the  testator's  wife."  If 
this  dictum  suggests,  and  perhaps  it  does,  that  a  trust  for  the  repair 
of  a  monument  during  the  lif e  of  a  person  now  living  would  be  good, 
it  is  respectfully  submitted  that  such  suggestion  is  incorrect. 

§  909.  Angus  v.  Noble.3  Here  was  a  trust,  created  by  will,  to 
last  only  during  the  lives  of  persons  living  at  the  testator's  death. 
The  testator  directed  "our  graves  to  be  kept  clean."  The  Supreme 
Court  of  Connecticut  held  that  this  provision  was  obligatory  upon 
the  trustee  during  the  continuance  of  the  trust.  It  is  respectfully 
submitted  that  this  ruling  is  difficult  to  support. 

§  909  a.  When  a  power  is  given,  with  a  gift  over,  express  or  implied, 
in  default  of  appointment,  an  appointment  under  the  power  is  good, 
although  there  be  no  one  who  can  compel  the  exercise  of  the  power; 
there  is  no  duty  intended  to  be  imposed  on  the  donee  of  the  power  to 
exercise  it.  But  when  there  is  an  intention  to  impose  a  duty,  to  create 
a  trust,  then  the  doctrine  of  Morice  v.  Bishop  of  Durham  is  that  (except 
in  the  case  of  charities)  if  there  is  no  cestui  que  trust,  the  trust  is  in- 
valid.4 I  think  Mr.  Charles  Sweet  has  overlooked  this  distinction.6 

1  See    1    Jarm.  Wills   (6th  ed.)  4  See    15  Harv.  Law  Rev.  509; 
279, 901 ;  18  Jurid.  Rev.  141 ;  §  909  a,      25  Harv.  Law  Rev.  1. 

post.  5  In    1   Jarm.    Wills    (6th    ed.) 

2  171  Mass.  496.  901,  note  (y);  cf.  Id.  279,  note  (I); 
*  73  Conn.  56.  18  Jurid.  Rev.  (Scotch)  136,  141. 


634  THE  RULE  AGAINST  PERPETUITIES. 

I. 

CONVERSION  AND  THE  RULE  AGAINST  PERPETUITIES. 

§  910.  In  Rous  v.  Jackson l  personal  property  was  given  by  a 
marriage  settlement  to  trustees  in  trust  for  the  husband  and  wife 
during  their  joint  lives,  and,  on  her  death,  if  she  died  before  the 
husband  (which  in  fact  occurred)  as  she  should  by  will  appoint.  She, 
by  will,  appointed  to  trustees  to  invest  the  trust  fund  in  lands  to  be 
conveyed  to  the  use  of  the  husband  for  life  and  on  his  death,  from  and 
after  the  decease  and  failure  of  the  issue  of  the  wife,  to  James  Mills 
for  life,  on  his  death  to  "his  issue  in  tail  as  therein  mentioned,"  in 
default  of  such  issue  to  Christopher  John  Mills  for  life,  and  on  his 
death  to  the  use  of  William  John  Rous,  the  plaintiff,  for  life,  and  on 
his  death  to  the  use  of  his  first  and  other  sons  in  tail  male,  with  re- 
mainders over.  This  is  the  statement  in  the  Law  Reports  and  in  the 
Law  Times  Reports.  In  the  Law  Journal  it  is  said  that  the  limitations 
were  in  favor  of  certain  persons  "including  the  plaintiff,  W.  J.  Rous, 
for  life,  with  remainders  to  their  issue  in  tail  in  strict  settlement." 
The  Weekly  Reporter  simply  says  that  the  wife  directed  the  property 
to  be  invested  in  real  estate  to  be  conveyed  to  the  husband  for  life,  and 
then  settled  strictly  on  the  plaintiff.  This  last  statement  is  manifestly 
incomplete.  The  probability  is  that  the  statement  in  the  Law  Reports 
and  the  Law  Times  Reports  is  correct;  that  James  Mills  had  a  life 
estate  with  remainder  to  his  first  and  other  sons  in  tail,  &c.  (that 
being  probably  the  meaning  of  to  "his  issue  in  tail  as  therein  men- 
tioned") and  that  Christopher  John  Mills  took  only  a  life  estate,  with- 
out any  limitation  to  his  issue. 

§  911.  The  wife  had  no  issue  living  at  her  death,  and  so  the  sub- 
sequent limitations  took  effect  directly.  The  Law  Reports  and 
the  Law  Times  Reports  say  that  James  Mills  and  William  John 
Rous  were  not  born  at  the  time  of  the  marriage  settlement,  but  do 
not  say  whether  this  was  the  case  with  Christopher  John  Mills. 
The  Law  Journal  says  all  the  life  tenants  except  the  husband  were 
born  since  the  date  of  the  marriage  settlement.  The  wife  died  in 
1838,  the  husband  in  1840.  Christopher  John  Mills  died  in  1855 

1  29  Cb.  D.  521;  s.c.  54  L.  J.  Ch.  732;  52  L.  T.  R.  733;  33  W.  R.  773. 


APPENDIX  635 

and  James  Mills  died  in  1883  without  ever  having  had  any  issue. 
The  trust  fund  had  never  been  converted  into  realty. 

§912.  The  Court  held,  contrary  to  Powell's  Trusts,1  that  the 
validity  of  the  wife's  appointment  as  to  the  question  of  remoteness 
was  to  be  judged  from  the  time  of  the  appointment,  and  that  the 
limitation  to  the  plaintiff  was  therefore  good. 

§  913.  Suppose  that  the  doctrine  of  Powett's  Trusts  had  been 
followed  and  that  the  appointments  of  the  wife  had  been  read  into 
the  marriage  settlement,  what  should  we  have?  Personal  property 
would  be  given  to  trustees  in  trust  for  the  husband  and  wife  during 
their  joint  lives,  and  on  her  death,  to  trustees  in  trust  to  invest  the 
trust  property  in  land  to  be  conveyed  to  the  husband  for  life,  on  his 
death  to  a  person  then  unborn  but  living  at  the  death  of  the  wife,  for 
life,  remainder  to  his  first  and  other  sons,  &c.,  in  tail,  remainder  to 
another  person  then  unborn  but  living  at  the  death  of  the  wife,  for 
life,  remainder  .to  another  person  then  unborn  but  living  at  the 
death  of  the  wife,  for  life,  with  remainders  over. 

§  914.  Now  if  the  property  be  considered  as  personal  throughout, 
it  is  obvious  that  on  the  doctrine  of  Powett's  Trusts  the  limitations 
after  that  to  James  Mills  are  bad,  for  the  next  limitations  to  his 
children  in  tail  are  to  persons  who  may  not  come  into  being  until 
more  than  twenty-one  years  after  lives  in  being  at  the  time  of  the 
marriage  settlement,  and  although  the  executory  limitation  over  to 
William  John  Rous,  the  plaintiff,  is  for  life  only,  it  might  not  vest 
till  beyond  the  required  limit. 

§  915.  Suppose,  however,  we  consider  the  trust  property  as  per- 
sonalty during  the  joint  lives  of  husband  and  wife,  and  after  that  as 
realty,  then,  after  the  death  of  the  wife,  we  have  an  estate  for  life 
to  an  unborn  person  followed  by  limitations  to  his  first  and  other  sons 
in  tail,  &c.  This,  by  the  doctrine  of  cy  pres,  would  give  the  unborn 
person  an  estate  tail  followed  by  a  life  estate  to  an  unborn  person, 
Christopher  John  Mills,  followed  again  by  a  life  estate  to  another 
unborn  person,  William  John  Rous,  the  plaintiff,  but  as  both  these 
persons  are  given  vested  interests  at  the  death  of  the  wife,  their  estates 
are  not  too  remote.  Therefore,  on  this  latter  theory,  the  limitation  to 
the  plaintiff  is  good  even  if  the  doctrine  of  Powell's  Trusts  is  applied. 

§  916.  If,  therefore,  the  assumption  in  Rous  v.  Jackson  that  the 
doctrine  of  Powell's  Trusts  would  invalidate  the  appointments,  is 
1  39  L.  J.  Ch.  188.  See  §§  526  et  seq.,  ante. 


636  THE   RULE   AGAINST   PERPETUITIES. 

correct,  it  must  be  that  the  direction  to  convert  personalty  into 
realty  at  a  future  time  cannot  affect  the  remoteness  of  limitations, 
and  that  their  validity  must  be  determined  as  if  the  property  was 
to  remain  personalty  throughout.1  This  proposition,  however, 
seems  doubtful.  And  in  Becker  v.  Chester2  real  estate  was  devised 
to  trustees  to  convert  and  apply  the  proceeds  upon  certain  trusts. 
The  Supreme  Court  of  Wisconsin  held  that  in  that  State  future 
limitations  of  real  estate  were  governed  by  statute,  but  future  lim- 
itations of  personalty  neither  by  statute  nor  by  the  common-law 
Rule  against  Perpetuities;  and  that  the  trusts  were  good,  although 
such  trusts  of  unconverted  realty  might  have  been  bad.3  And  so  in 
Minnesota.4 

§  917.  Where  there  is  a  duty  on  a  trustee  to  convert  realty  into 
personalty,  the  supposed  rule  against  "double  possibilities"  does  not 
apply.6 


J. 

CONTINGENT  REMAINDER  OR  CONDITIONAL  LIMITATION. 

A  FUTURE  LIMITATION  WHICH  CAN  TAKE  EFFECT  AS  A  CONTINGENT 

REMAINDER   MUST  TAKE   EFFECT  AS  SUCH  AND  CANNOT  TAKE 

EFFECT  AS  A  SPRINGING  OR  SHIFTING  USE  OR  AN  EXECUTORY 

DEVISE. 

§  918.   Before  the  Statute  of  Uses  and  the  Statute  of  Wills,  the  only 

future  limitations  which  an  owner  in  fee  simple  could  create  were 

1  The    circumstance     that    the  during  the  twenty  years  and  of  the 
property  was  not  in  fact  converted  proceeds  of  the  sale  were  held  to  be 
seems  immaterial.  alike  void   as  violating   the   stat- 

2  115  Wis.  90.  ute  concerning  land.     De  Wolf  v. 

3  Becker   v.    Chester    was   fol-  Lawson,  61  Wis.  469.    Cf.  Penny 
lowed  in  Danforth  v.  Oshkosh,  119  v.  Croul,  76  Mich.  471;  Lounsbury 
Wis.  262;  and  Kavanaugh's  Will,  v.  Trustees  of  Burial  Association, 
143  Wis.  90.    See  Dodge  v.  Williams,  170  Mich.  645,   §751,  ante;  Bates 
46  Wis.  70;  Gould  v.  Taylor  Orphan  v.  Spooner,  75  Conn.  501. 
Asylum,  Id.  106;  Webster  v.  Morris,  4  Young  Men's  Christ.  Assoc.  v. 
66  Wis.  366.     But  where  a  testator  Horn,  120  Minn.  404. 

directed  land  to  be  sold  only  at  the  6  Fonseca  v.    Jones,   21    Mam- 

expiration   of   twenty   years   from      toba,  168,  184.     See  §  295,  ante. 
his  death  the  gift  of  the  income 


APPENDIX.  637 

remainders.  A  remainder  must  come  into  possession  on  the  termina- 
tion of  the  preceding  estates.  Thus,  upon  a  conveyance  to  A.  for  life, 
and  one  year  after  A.'s  death  to  B.,  the  limitation  to  B.  was  not  a  re- 
mainder, and  was  a  void  limitation.  This  was  because  freehold  estates 
could  be  created  only  by  livery  of  seisin,  and  though  the  property  in 
land  could  be  cut  up  into  present  and  future  estates,  there  must  be 
a  livery  of  seisin  for  each  estate  unless  the  estates  were  continuous; 
if  they  were  continuous,  the  livery  of  seisin  of  the  first  estate  was 
deemed  sufficient  for  them  all.  Therefore  a  contingent  remainder, 
that  is,  a  remainder  subject  to  a  condition  precedent,  could  not  take 
effect  unless  the  condition  was  fulfilled  during,  or  at  the  termination 
of,  the  preceding  estates. 

§  919.  Under  the  Statutes  of  Uses  and  of  Wills,  remainders  created 
by  way  of  use  or  by  devise  had  all  the  incidents  of  remainders  created 
by  common  law,  but  under  those  Statutes  future  estates  could  be 
created  which  were  not  remainders,  and  which  could  take  effect  with- 
out regard  to  any  preceding  estates.  These  estates  were  called  spring- 
ing or  shifting  uses  or  executory  devises.  Thus,  upon  a  devise  to  A. 
for  life,  and  one  year  after  A.'s  death  to  B.,  though  the  devise  to  B. 
was  not  good  as  a  remainder,  it  was  good  as  an  executory  devise. 

§  920.  A  rule  of  law  was  early  established  that  if  the  condition  or 
event  on  which  a  future  estate  was  to  vest  might  occur  during,  or  at 
the  termination  of,  the  particular  estates,  such  future  estate  was  to  be 
held  a  contingent  remainder  and  not  an  executory  devise.  This  rule 
seems  to  have  been  first  laid  down  by  Lord  Hale  in  Purefoy  v.  Rogers.1 
He  says:  "Where  a  contingency  is  limited  to  depend  on  an  estate  of 
freehold  which  is  capable  of  supporting  a  remainder,  it  shall  never  be 
construed  to  be  an  executory  devise,  but  a  contingent  remainder  only, 
and  not  otherwise." 

§  921.  And  this  doctrine  has  been  repeatedly  laid  down  and  fol- 
lowed, as  by  Lord  Northington  in  Carwardine  v.  Carwardine,2  where 
he  says:  "It  is  a  certain  principle  of  law,  that  wherever  such  a  con- 
struction can  be  put  upon  a  limitation,  as  that  it  may  take  effect 
by  way  of  remainder,  it  shall  never  take  place  as  a  springing  use  or 
executory  devise;"  by  Lord  Mansfield  in  Goodtitle  v.  Bittington;3  by 
Lord  Kenyon  in  Doe  d.  Mussett  v.  Morgan*  where  he  says:  "If  ever 

1  2  Wms.  Saund.  380,  388.  »  Dougl.  753,  758. 

1  1  Eden,  27,  34.  4  3  T.  R.  763,  765. 


638  THE  RULE  AGAINST  PERPETUITIES. 

there  existed  a  rule  respecting  executory  devises  which  has  uniformly 
prevailed  without  any  exception  to  the  contrary,  it  is  that  which  was 
laid  down  by  Lord  Hale;  "  by  Lord  Ellenborough,  in  Doe  d.  Scott  v. 
Roach,1  where  he  says:  "As  circumstances  stood  when  the  will  was 
made  the  limitation  to  Mary  Dennett's  children  must  have  been  con- 
strued a  contingent  remainder,  not  because  the  testatrix  meant  it  to 
operate  in  that  particular  mode,  that  is,  by  contingent  remainder, 
nor  because  her  intention  would  be  most  effectually  carried  into 
effect  by  treating  it  as  a  contingent  remainder,  but  because  it  is  a  rule 
of  law  that  no  limitation  shall  operate  by  way  of  executory  devise, 
which,  at  the  time  of  the  testator's  death,  was  capable  of  operating 
by  way  of  contingent  remainder;"  by  the  Court  of  Common  Pleas 
in  Doe  d.  Planner  v.  Scudamore; 2  and  by  the  Court  of  King's  Bench  in 
Doe  d.  Herbert  v.  Selby.3  And  Lord  St.  Leonards  in  Cole  v.  Sewell* 
says:  "Now,  if  there  be  one  rule  of  law  more  sacred  than  another, 
it  is  this,  that  no  limitation  shall  be  construed  to  be  an  executory 
or  shifting  use,  which  can  by  possibility  take  effect  by  way  of 
remainder."5 

§  922.  A  series  of  cases  has  brought  this  doctrine  into  prominence: 
Brackenbury  v.  Gibbons.6  Devise  to  A.  for  life,  and  on  her  death  to 
the  children  of  B.  who  either  before  or  after  B.'s  death  should  attain 
twenty-one  or  die  under  that  age  leaving  issue  living  at  his,  her,  or 
their  deaths.  At  the  death  of  A.  two  children  of  B.  had  attained 
twenty-one;  other  children  of  B.  attained  twenty-one  subsequently. 
Hall,  V.  C.,  held  that  the  case  was  covered  by  authority,  and  that  the 
children  and  only  the  children  who  had  reached  twenty-one  at 
the  death  of  A.  were  entitled. 

§  923.  In  re  Lechmere  &  Lloyd.7  Devise  to  A.  for  life,  and  on  her 
death  to  such  of  her  children  li ving  at  her  death  as  either  before  or 
after  her  decease  should  attain  twenty-one  or  marry.  A.  died  leaving 
seven  children,  of  whom  five  had  attained  twenty-one  and  two  were 
infants.  Jessel,  M.  R.,  refused  to  follow  Brackenbury  v.  Gibbons. 

1  5  M.  &  S.  482,  491,  492.  Prop.  (22d  ed.)  386;  21  Law  Quart. 

*  2  B.  &  P.  289,  296,  297,  298.  Rev.    129;    see    also    Burleigh    v. 
»  2  B.  &  C.  926,  930.  Clough,  52  N.  H.  267,  273;  Hay- 
4  4  D.  &  War.  1,  27.  ward  v.  Spaulding,  75  N.  H.  92. 

•  See  Fearne,  C.   R.    388-395;          •  2  Ch.  D.  417  (1876). 
Smith,  Exec.  Int.  71,  72;  Theob.  T  18  Ch.  D.  524. 
Wills    (7th  ed.)  649;  Wms.  Real 


APPENDIX.  639 

He  said  that  the  gift  could  not  take  effect  as  a  remainder  to  those 
children  who  had  not  attained  twenty-one.  "If  the  devise  be  to 
A.  for  life,  and  after  her  death  simply  to  a  class  of  children  who  shall 
attain  twenty-one  or  marry,  I  agree  that  those  members  of  the 
class  who  have  not  attained  twenty-one  or  married  at  the  death  of  the 
tenant  for  life,  though  they  may  do  so  afterwards,  cannot  take,  ac- 
cording to  the  rule  in  Festing  v.  Allen; 1  but  here  we  have  two  distinct 
classes  as  the  objects  of  the  devise,  the  one  being  children  living  at  the 
death  of  the  tenant  for  life,  and  attaining  twenty-one  or  marrying 
before  the  death,  and  the  other  being  children  living  at  the  death, 
and  attaining  twenty-one  or  married  after  the  death.  ...  To  en- 
able the  second  class  to  participate  it  is  necessary  to  read  the 
gift  to  them  as  an  executory  devise.  The  rule  is  that  you  construe 
every  limitation,  if  you  possibly  can,  as  a  remainder,  rather  than  as 
an  executory  devise.  It  is  a  harsh  rule:  Why  should  I  extend  it?  ... 
The  devise  in  this  case  could  not  take  effect  as  a  remainder  in  re- 
spect of  those  children  who  survived  the  tenant  for  life  but  had 
not  attained  twenty-one  at  her  death,  and  must,  therefore,  in  order 
to  let  in  those  children,  be  construed  as  an  executory  devise."  He 
held  that  the  children  who  had  reached  twenty-one  could  not  make 
a  good  title. 

§  924.  Miles  v.  Jams 2  is  a  case  similar  to  In  re  Lechmere  &  Lloyd. 
Kay,  J.,  followed  that  decision.  He  said  there  was  "an  executory 
devise  and  not  a  contingent  remainder."  Re  Bourne 3  is  a  decision  to 
the  same  effect.  Kay,  J.,  says  he  followed  In  re  Lechmere  &  Lloyd 
"with  great  satisfaction."  "The  rule,  which  is  an  arbitrary  rule, 
that  you  must  construe  a  limitation  as  a  contingent  remainder  if  that 
construction  is  possible,  is  one  which  often  produces  great  injustice 
and  hardship,  and  I  cannot  help  being  glad  to  see  that  a  distinction 
of  this  kind  has  been  established."  Dean  v.  Dean  *  was  similar  to 
In  re  Lechmere  &  Lloyd,  and  Chitty,  J.,  followed  that  case.  He 
said:  "Where  the  limitation  is  to  children  who  either  before  or  after 
the  death  of  the  tenant  for  life  attain  the  age  of  twenty-one,  the 
testator  expressly  attaches  the  qualification  of  membership  of  the 
class  to  those  children  who  attain  the  age  after  the  tenant  for  life's 
death,  and,  in  order  to  give  effect  to  the  express  and  lawful  limita- 

1  12  M.  &  W.  279.  *  56  L.  T.  R.  388. 

1  24  Ch.  D.  633  (1883).  «  [1891]  3  Ch.  150. 


640  THE   BULB  AGAINST  PERPETUITIES. 

tion  in  favor  of  such  children,  the  court  is  bound  to  hold  that  the 
limitation  taken  in  its  entirety  is  an  executory  devise."  In  Symes  v. 
Symes 1  a  limitation  on  the  death  of  a  life  tenant  to  such  of  a  class 
as  should  attain  twenty-one  was  held  a  contingent  remainder,  and 
In  re  Lechmere  &  Lloyd  was  distinguished. 

§  925.  Passing  over  for  the  moment  In  re  Wrightson,  we  come  to 
White  v.  Summers.2  Devise  to  A.  for  life,  to  his  eldest  and  other  sons 
successively  in  tail  male,  and  in  default  of  such  issue  to  the  eldest  or 
other  son  of  B.  who  should  first  attain  twenty-one.  A.  died  without 
issue.  At  his  death  C.,  the  eldest  son  of  B.,  was  a  minor.  He  after- 
wards attained  twenty-one.  Parker,  J.,  in  an  admirable  opinion, 
which  deserves  the  closest  study,  held  that  C.  had  a  contingent  re- 
mainder which  failed.  He  showed  that  the  rule  that  a  limitation  which 
can  take  effect  as  a  contingent  remainder  cannot  take  effect  as  a 
springing  use  or  executory  devise  is  a  positive  rule  of  law;  and  that 
whether  the  testator  intended  the  limitations  to  take  effect  in  this 
way  or  that  is  immaterial,  unless  his  language  can  be  construed  as 
expressing  an  intention  to  make  alternative  gifts,  one  as  a  contingent 
remainder  and  the  other  as  an  executory  devise.  One  may  doubt 
whether  a  gift  to  A.  for  life  and  on  his  death  to  such  of  a  class  as  before 
or  after  A.'s  death  should  attain  twenty-one  would  be  construed 
as  containing  alternative  gifts,  unless  it  were  to  avoid  an  obnoxious 
rule  of  law,  but  it  is  a  possible  construction,  and  on  it  Parker,  J.,  ex- 
plains In  re  Lechmere  &  Lloyd  and  the  cases  which  have  followed  it. 

§  926.  Going  back  now  to  In  re  Wrightson.3  A  devise  in  a  will, 
under  the  circumstances  which  had  happened,  was  to  A.  for  life,  re- 
mainder to  C.,  the  first  son  of  B.,  for  life,  with  remainders  to  his  sons 
successively  in  tail  male,  remainder  to  D.,  the  second  son  of  B.,  for 
life,  remainder  to  his  sons  successively  in  tail  male,  with  limitations 
over.  A  codicil  provided  that  no  devisee  of  any  real  estate  under  the 
will  should  have  a  vested  interest  therein  or  be  entitled  to  the  pos- 
session of  the  same  until  he  attained  twenty-four.  A.  and  C.  died, 
the  latter  leaving  a  son  E.  who  was  a  minor.  According  to  the  will 
E.  was  entitled  to  possession  as  tenant  in  tail  male.  What  was  the 
effect  of  the  codicil?  Did  it  turn  what,  under  the  will,  would  be  a 
vested  remainder  in  E.  into  a  contingent  remainder  or  into  an  exec- 

»  [1896]  1  Ch.  272.  s  [1904]  2  Ch.  (C.  A.)  95. 

*  [1908]  2  Ch.  256. 


APPENDIX.  641 

utory  devise?  The  Court  held  that  it  changed  it  into  an  executory 
devise.  The  Court  of  Appeal  certainly  seems  to  have  thought  that  the 
rule  could  be  relaxed  by  showing  that  the  testator  intended  the  gift 
to  take  effect,  though  the  contingency  did  not  occur  until  after  the 
termination  of  the  particular  estate.  In  face  of  the  reasoning  in  White 
v.  Summers,  it  seems  difficult  to  sustain  this  conclusion.  Parker,  J., 
in  the  latter  case,  felt  the  difficulty.  His  explanation  of  In  re  Wright' 
son  is  not  very  satisfactory. 

§  927.  Simondsv.Simonds.1  A.  by  deed  granted  land  to  B.  and  his 
heirs,  reserving  to  himself  the  right  to  cut  timber,  to  hold  to  B.  for 
life,  remainder  to  such  of  the  children  of  B.  as  should  reach  twenty-one, 
so  that  neither  A.  nor  his  heirs  nor  any  person  claiming  under  him 
should  have  any  estate,  right,  title,  or  interest  in  the  land  except  as 
aforesaid.  B.  died  leaving  five  children,  two  of  age  and  three  minors. 
The  Court  held  that  the  devise  to  B.'s  children  was  a  springing  use 
and  not  a  contingent  remainder.  The  Court  says:  "There  is  nothing 
at  variance  with  this  view  in  the  well  settled  rule  that  a  limitation, 
if  it  can  so  operate,  is  to  be  construed  as  a  remainder,  and  not  as  an 
executory  devise,  even  if  the  rule  be  conceded  to  apply  with  equal 
force  to  springing  and  shifting  uses.  That  rule  is  adduced  to  give 
effect  to  the  intent  of  the  maker  and  carry  out  the  terms  of  the  in- 
strument. Its  invocation  here  could  only  thwart  that  intent  and 
defeat  those  terms.  Hence  it  has  no  application."  That  is:  The 
rule  exists  to  carry  out  intention,  and  therefore  cannot  be  used  to 
defeat  intention.  But,  with  submission,  as  appears  from  the  opinions 
of  Lord  Hale,  Lord  Northington,  Lord  Kenyon,  Lord  Ellenborough, 
and  Lord  St.  Leonards,  cited,  and  the  demonstration  in  White  v. 
Summers,  the  object  of  the  rule  had  nothing  to  do  with  intention. 
The  rule  originated  in  the  dislike  of  judges  to  limitations  brought  in 
by  the  Statutes  of  Uses  and  Wills.  This  dislike  may  have  been 
unreasonable  and  arbitrary,  but  a  positive  prescription  of  law  was 
established,  and  not  a  rule  of  construction. 

§  928.  When  a  positive  rule  of  law  has  become  obnoxious  to  the 
Courts,  they  may  deal  with  it  in  three  ways: 

First.    They  may  follow  it  and  leave  it  to  the  Legislature  to  alter  it; 

Second.  They  may  say  it  is  unsuited  to  modern  conceptions  and 
may  disregard  it; 

»  199  Mass.  552. 


642  THE   RULE   AGAINST   PERPETUITIES. 

Third.  They  may  change  it  from  a  positive  rule  of  law  to  a  rule  of 
construction. 

§  929.  The  First  may  be  the  best;  but  something  can  be  said  for 
the  Second.  The  rule  in  this  case  had  its  origin  in  the  dislike  of  uses 
which  is  so  forcibly  expressed  in  the  preamble  of  the  Statute  of  Uses. 
This  dislike  was  fully  shared  by  the  judges,  they  called  uses  impious, 
and  in  Chudleigh's  Case,  and  also  in  laying  down  the  rule  in  question, 
they  were  striving  to  limit  their  creation.  That  was  the  raison  d'etre 
of  this  rule,  not  perhaps  a  very  wise  reason,  but  still  a  reason.  That 
has  now  all  passed  away.  No  one  thinks  uses  impious.  They  are 
employed  harmlessly  in  ordinary  conveyances.  Indeed,  it  takes 
no  ordinary  exercise  of  historical  imagination  to  realize  the  state  of 
mind  which  prevailed  when  the  rule  in  question  was  thought  of  value. 
And  it  may  perhaps  fairly  be  said,  cessante  ratione,  cessat  ipsa  lex. 

§  930.  But  the  Third  plan,  that  of  treating  the  rule  as  a  rule  of  con- 
struction, which  is  adopted  probably  in  In  re  Wrightson,  and  certainly 
in  Simonds  v.  Simonds,  seems  the  least  desirable  of  the  three.  Re- 
garded as  a  rule  of  positive  law,  there  was  a  reason  for  the  rule,  not 
perhaps  at  our  day  a  very  convincing  reason,  yet  still  a  reason;  but, 
regarded  as  a  rule  of  construction,  there  is  no  reason  or  sense  in  it,  it 
is  purely  arbitrary.  An  arbitrary  rule  of  construction,  a  rule  without 
a  reason,  is  a  bad  thing;  to  such  rules  and  the  attempt  to  escape  from 
them  is  largely  due  the  chaotic  mass  of  cases  which  is  an  opprobrium 
to  the  law  of  wills  and  settlements.  The  Rule  in  SheUey's  Case  is 
the  best  instance.  That  rule  is  a  simple,  positive  rule  of  law.  The 
Courts  tried  to  treat  it  as  a  rule  based  on  intent,  and  the  result  was  that 
welter  of  decisions  of  which  Lord  Eldon,  the  acutest  of  mortals,  said, 
"The  mind  is  overpowered  by  their  multitude  and  the  subtlety  of  the 
distinctions  between  them;"  and  deliverance  from  which  has  been 
finally  gained  only  by  recognizing  that  the  rule  is  not  a  rule  to  cany 
out  intent,  but  a  rule  to  defeat  it.1 

1  It  may  be  suggested  that  the  heirs,  he  has  the  fee,  not  by  virtue 

result  reached  in  Simonds  v.  Si-  of  the  Statute,  but  at  common  law. 

monds  can  be  defended  on  the  fol-  Doe  d.  Lloyd  v.  Passingham,  6  B. 

lowing  ground:  &  C.  305. 

The  Statute  of  Uses  turns  uses  In  a  conveyance  which  operates 

into  legal  estates  when  a  man  is  as  a  feoffment,  it  is  usual  to  insert 

seised  to  the  use  of  others.  When  a  the  recital  of  a  consideration  and 

conveyance  is  made  to  a  man  and  also  a  declaration  of  a  use  to  the 

his  heirs  to  the  use  of  himself  and  his  grantee,  but  this  is  to  rebut  the 


APPENDIX. 


643 


K. 

WHITBY  v.  MITCHELL.* 

§  931.  The  case  of  Whitby  v.  Mitchell 2  set  forth  this  doctrine  r 
The  rule  that  a  contingent  remainder  for  life  to  an  unborn  person 


presumption  of  a  resulting  use  to 
the  grantor.  Even  if,  before  the 
Statute  of  Uses,  a  man  could  have 
a  use  against  himself,  such  use 
would  not  have  been  turned  by  the 
Statute  into  a  legal  estate,  and 
therefore  no  following  limitation 
could  possibly  take  effect  as  a 
contingent  remainder,  for  there 
would  be  no  legal  estate  to  support 
it,  and  it  would  therefore  be  a 
springing  use. 

And  further,  it  is  not  easy  to 
eee  how  a  man  could  have  a  use 
against  himself,  any  more  than  he 
can  make  a  grant  to  himself  or 
make  a  contract  with  himself. 
Such  a  use  would  seem  to  be  sim- 
ply void.  See  the  opinions  of  the 
judges  in  Abbiss  v.  Burney,  17  Ch. 
D.  211. 

The  difficulty  with  this  sugges- 
tion is  that  it  was  early  said  that 
the  Statute  of  Uses  would  be 
"beneficially  expounded,"  so  that 
when  A.  covenanted  to  stand 
seised  to  the  use  of  himself  for  life, 
remainder  to  others,  A.  would 
take  a  life  estate.  The  beneficent 
exposition  being  apparently  that 
when  a  man  was  seised  to  the  use 
of  himself  and  also  of  others,  the 
Statute  executed  all  the  uses.  "If 
a  man  seised  of  lands  in  fee  simple, 


by  deed  covenants  with  another 
that  he  and  his  heirs  will  stand 
seised  of  the  same  land  to  the  use 
of  himself  and  the  heirs  of  his  body, 
or  unto  the  use  of  himself  for  life, 
the  remainder  over  in  fee;  in  that 
case,  by  the  operation  of  the 
Statute,  the  estate  which  he  hath 
at  the  common  law  is  divested  and 
a  new  estate  vested  in  himself, 
according  to  the  limitation  of  the 
use."  Sammes's  Case,  13  Co.  55 
(1609).  This  dictum  and  the  case 
of  Pibus  v.  Mitford,  1  Vent.  372, 
seem  to  be  the  only  judicial  au- 
thorities for  the  proposition. 

In  the  report  of  Sammes's  Case, 
Ley,  11,  there  is  no  such  dictum, 
and  in  Orme's  Case,  L.  R.  8  C.  P. 
281,  288,  289,  Bovill,  C.  J.,  said 
it  was  very  ambiguous  and  was 
not  necessary  to  the  decision  of 
the  case;  and  see  Id.  pp.  302,  303. 

The  twelfth  and  thirteenth  vol- 
umes of  Lord  Coke,  it  must  also 
be  remembered,  were  posthumous 
and  bear  a  very  indifferent  repu- 
tation. In  McPherson  v.  Daniels, 
10  B.  &  C.  263,  275,  Parke,  J., 
said:  "The  12  Rep.  is  not  a  book 
of  any  great  authority.  It  is  said 
by  Mr.  Hargrave,  11  St.  Tr.  30,  to 
be  of  small  authority,  being  not  only 
posthumous,  but  apparently  noth- 


1  The   substance    of    this   Ap- 
pendix, with  the  exception  of  the 


note  added  at  the  end,  was  printed 
in  29  Law  Quart.  Rev.  26-32. 
»  42  Ch.  D.  494;  44  Ch.  D.  86. 


644  THE   RULE  AGAINST  PERPETUITIES. 

•cannot  be  followed  by  a  remainder  to  such  person's  child  is  a  rule 
of  law  prior  to,  and  independent  of,  the  Rule  against  Perpetuities, 
and  still  exists;  and  therefore  a  remainder  to  such  child  is  void,  al- 
though it  must  take  effect,  if  at  all,  within  lives  in  being,  and  so 
is  not  in  violation  of  the  Rule  against  Perpetuities. 

§  932.  My  learned  friend,  Mr.  Charles  Sweet,  published  an  article  in 
the  Law  Quarterly  Review *  defending  Whitby  v.  Mitchell.  I  ventured 
in  the  second  edition  of  this  book  of  mine  on  the  Rule  against  Per- 
petuities to  comment  adversely  upon  this  article.  Since  then  Mr. 
Sweet  has  written  fully  on  the  subject,  both  in  his  valuable  editions 
of  Jarman  on  Wills  and  Challis  on  Real  Property,  and  in  articles  in  the 
Columbia  Law  Review  and  the  Juridical  Review.2  I  have  read  care- 
fully what  Mr.  Sweet  has  written,  and  although  my  conclusion  on 
the  main  question  remains  unchanged,  I  do  not  think  I  did  full  justice 
to  his  views,  particularly  as  now  developed.  I  will  try  to  state  more 
specifically  my  objections  to  them. 

§  933.  The  reason  ordinarily  given  for  the  alleged  rule  is  that  the  law 
will  not  allow  a  possibility  upon  a  possibility.  Mr.  Sweet  rejects 
this  reason  emphatically,  I  may  say  with  contempt.3  But  he  believes 

ing  more  than  a  collection  from  §§  158,  160.    Preston,  Estates,  179. 

papers    neither    digested    nor    in-  1  Sanders,  Uses  (5th  ed.)  91  el  seq. 

tended  for  the  press  by  the  writer.  Leake,  Land  Law,  119.    See  Doe 

And  Mr.  Sergeant  Hill,  in  his  copy,  d.  Lloyd  v.  Passingham,  ubi  supra. 

refers    to  fo.   18,   19,   as    showing  But  cf.  Orme's  Case,  L.  R.  8  C.  P. 

that  the   12  Rep.   was  not  fit  to  281. 

be  allowed.  And  Holroyd,  J.,  in  Whether  these  statements  of 
Lewis  v.  Walter,  4  B.  &  A.  614,  the  text-writers  are,  as  my  col- 
gives  an  opinion  unfavorable  to  league  Professor  E.  H.  Warren  is 
its  accuracy."  inclined  to  think,  a  cantilena  of 

Pibus    v.     Mitford,     Lord    St.  lawyers  based  on  insufficient  au- 

Leonards  says,  in  his  note  to  Gil-  thority,    and    contrary   to   funda- 

bert  on  Uses,  35,  has  been  often  mental  doctrines,  or  whether  com- 

denied.  munis  error  fecit  jus,  I  leave  to  the 

But  that  if  a  man  is  seised  in  fee  judgment  of  the  learned  reader, 
to  the  use  of  himself  for  life,  he  has  a  Cf .  note  on  Evers  v.  Challis,  18 

legal  life  estate,  is  laid  down  in  a  Q.  B.  224,  231,  7  H.  L.  C.  531, 

long  series  of  treatises  of  reputa-  §  338,  note  3,  p.  315,  ante. 
tion.     Bacon  on  Statute  of  Uses,  *  15  Law  Quart.  Rev.  71. 

7  Bacon's  Works  (ed.  Speddings's)  *  12   Columbia   Law  Rev.  199; 

440.     Gilbert,  Uses  (ed.  Sugd.)  35.  18  Jurid.  Rev.  132. 
1  Cruise,  Dig.  (4th  ed.)  357.     Bur-  *  "This  theory  may  be  treated 

ton,   Compendium  of   Real  Prop.,  as  exploded."    Challis,  Real  Prop. 


APPENDIX.  645 

there  is  another  sufficient  reason  for  the  present  existence  of  the  al- 
leged rule. 

§  934.   Mr.  Sweet's  view  is: 

1.  The  judges  had  a  dislike  to  the  tying  up  of  property. 

2.  This  dislike,  at  least  since  Mary  Portington's  Case,1  was  put  in 
the  concrete  form  of  a  rule  that  no  tenant  in  tail  could  be  prevented 
from  barring  his  estate. 

3.  An  estate  tail  which  could  not  be  barred  was  often  called  a 
"perpetuity." 

4.  Devices  were  employed  to  evade  the  rule  as  to  estates  tail, 
but  such  devices  were  condemned  and  disallowed  by  the  Courts  as 
"tending  to  a  perpetuity." 

5.  These  devices  were  of  two  kinds: 

First .  Estates  for  life  were  given  to  a  man  and  his  heirs  in  successive 
generations  as  purchasers. 

Second.  A  term  for  years  was  devised  with  a  proviso  that  if  the 
devisee  died  without  issue  there  should  be  a  limitation  over. 

Thus  far  I  agree  —  I  suppose  every  one  will  agree  —  with  Mr. 
Sweet. 

§  935.  Unless  implied  in  the  treatment  of  those  devices,  there  is  no 
evidence  that,  before  the  Rule  against  Perpetuities  was  established, 
a  rule  that  a  remainder  to  the  child  of  an  unborn  person  following 
a  remainder  for  life  to  such  person  was  void,  was  formulated;  and 
the  case  of  Manning  v.  Andrews 2  is  an  authority  the  other  way. 

(3d  ed.)  206.  "No  definite  or  in-  trine  of  double  possibilities."  Id. 
telligible  rule  against  double  pos-  219.  And  see  per  Farwell,  J.,  in 
sibilities  ever  existed."  1  Jarm.  In  re  Ashforth,  [1905]  1  Ch.  535, 
Wills  (6th  ed.)  287,  note  (6).  To  "I  do  not  think  that  much  re- 
the  theory  of  the  prohibition  of  a  liance  can  be  placed  on  the  exist- 
possibility  upon  a  possibility  as  ence  of  an  independent  rule  of  law 
the  explanation  of  the  alleged  rule,  forbidding  a  possibility  on  a  possi- 
" there  are  two  objections:  in  the  bility.  The  phrase  seems  due  to 
first  place,  it  is  historically  inac-  Lord  Coke's  unfortunate  predilec- 
curate,  and  in  the  second  place,  it  tion  for  scholastic  logic,  and  may 
tends  to  obscure  the  true  nature  possibly  be  a  pedantic  and  inac- 
and  scope  of  the  rule."  12  Columbia  curate  reason  for  avoiding  remote- 
Law  Rev.  200.  "The  doctrine  of  ness;"  and  In  re  Nash,  [1910]  1  Ch. 
double  possibilities  .  .  .  never  had  1,  9,  10. 
any  real  existence;  it  perished  al-  *  10  Co.  35  a. 
most  as  soon  as  it  drew  breath."  *  1  Leon.  256.  See  §§132, 
216.  "The  'stigma'  of  the  doc-  132  a,  ante. 


646  THE  RULE  AGAINST  PERPETUITIES. 

Mr.  Sweet l  says:  "It  may  safely  be  said  that  there  was  no  express  rule 
to  that  effect  [forbidding  the  limitation  of  land  in  remainder  to  the 
children  of  an  unborn  child  after  an  estate  for  Me  given  to  that  unborn 
child],  but  there  is  nothing  to  show  that  such  a  remainder  would 
have  been  allowed  by  the  judges."  That  is  just  what  I  say.  I  have 
never  denied  that  if  such  a  case  had  been  presented  to  the  judges  they 
would,  it  is  very  likely,  have  invented  some  rule  to  meet  it.  What  I 
have  insisted  on  is  that  no  such  rule  had  been  formulated  before  the 
Rule  against  Perpetuities. 

§  936.  Therefore,  if  the  rule  in  question  existed,  it  must  have  been 
by  reason  of  the  manner  of  treatment  by  the  Courts  disallowing 
one  or  both  of  the  two  devices. 

§  937.  As  to  the  first  device,  it  is  not  clear  how  the  Courts  treated  it. 
All  that  we  know  about  the  matter  are  dicta  of  Chief  Justice  Popham 
in  Chudleigh's  Case,2  and  a  passage  from  the  Touchstone  based  on 
Popham,  C.  J.'s,  dicta,3  which  were  unearthed  by  Mr.  Sweet.  The 
dicta  attributed  to  the  Chief  Justice  are  these.  He  said:  "If  a  feoff- 
ment  be  made  to  the  use  of  A.  for  life,  and  after  to  the  use  of  every 
person  who  should  be  his  heir,  one  after  another,  for  the  term  of  the 
life  of  every  such  heir  only:  in  this  case  if  this  limitation  should  be 
good,  the  inheritance  would  be  in  nobody;  but  this  limitation  is 
merely  void,  for  the  limitation  of  a  use  to  have  a  perpetual  freehold 
is  not  agreeable  with  the  rule  of  law  in  estates  in  possession." 
And  again:  "If  the  said  case  before  put  of  a  perpetual  freehold 
should  be  maintained,  that  no  heir  shall  haVe  but  an  estate  for  life  and 
that  the  inheritance  shall  be  in  nobody,  what  escheat,  or  ward,  or  heriot, 
or  other  profit,  will  accrue  to  the  King  or  other  Lords?"  What  the 
Touchstone  says  is  this:  "Uses  that  are  against  the  rules  of  the 
common  law  shall  not  be  executed  by  this  statute:  and  therefore,  if  a 
feoffment  be  made  to  the  use  of  A.  for  life,  and  after  to  the  use  of  every 
person  that  shall  be  his  heir,  one  after  another,  for  the  term  of  his  life 
.  .  .  these  uses  shall  not  be  executed,  because  these  limitations 
shall  be  wholly  void."  It  is  not  entirely  clear  what  these  passages 
mean.  Perhaps  they  mean  that  all  the  uses  are  void,  and  there  is  a 
resulting  use  to  the  feoff  or  in  fee;  but  what  seems  more  probable  is 
that  the  Court  thought  that  A.  had  a  fee,  and  that  his  heirs  must  take 

1  12  Columbia   Law  Rev.  215,          *  1  Co.  120  a,  138  a,  139  b. 
216.  »  Shep.  Touch.  268. 


APPENDIX. 


647 


by  descent  and  not  by  purchase.1  However  this  may  be,  one  thing,  it 
is  confidently  submitted,  is  certain,  that  the  Court  did  not  mean  to 
say  that  A.  would  take  a  life  estate,  that  his  heir  would  take  a  life 
estate,  and  that  then  there  would  be  a  resulting  use  to  the  feoffor.2 


1  "If  a  man  makes  a  feoff ment 
in  fee  to  the  use  of  A.,  his  son,  for 
life,  and  afterwards  to  the  use  of 
every  person  that  shall  be  his  heirs 
(sic),  for  life  only,  it  is  not  good  to 
the  heir,  for  it  is  against  the  rules 
of  common  law  that  a  perpetual 
freehold   for  life  only  should  de- 
scend,  because   it   creates   a   per- 
petuity; but  it  seems  in  this  case 
as  if  the  Chancery  (since  there  is 
supposed    a    good    consideration) 
would  have  executed  a  fee  in  A., 
according  to  the  intent  of  the  par- 
ties."   Gilb.  Uses,  77. 

2  I  must  call  attention  to  a  very 
curious  case  to  which  I  was  di- 
rected  by  Wms.  Real  Prop.  (22d 
ed.)  418,  note  (i),  but  which  has 
not,   to   my  knowledge,   been  re- 
marked  upon.     In  Perrot's  Case, 
Moore,   368    (1594),   there  was   a 
feoffment  to  the  use  of  A.  for  life, 
and  on  Jiis  death  to  the  use  of  his 
first  son  for  life,  and  then  to  the 
first  son  of  such  first  son  for  life, 
and  then  to  the  use  of  all  and  single 
A.'s  sons  and  male  issue.    The  ar- 
gument of  Coke,  A.  G.,  is  thus  re- 
ported: "To  prove  such  limitation 
of  perpetual  freeholds  to  be  void 
of  land  in  possession,  he  vouches  a 
case  reported  by  Justice  Windham 
in  the  Common  Bench  in  26  &  27 
Eliz.  Regina,  Rot.  343  or  323,  and 
adjudged  Trin.  27  Eliz.  in  an  action 
of    waste    by    Leonard    Lovelace 
against   Tho.    Lovelace,    where   it 
appeared    that    the    land,    being 
gavelkind,  was  devised  to  one  and 
his  eldest  issue  male,  and  so  from 


heir  male  to  heir  male  for  ever, 
and  it  was  adjudged  that  this  was 
an  estate  of  freehold  in  remainder 
to  all  the  heirs  male  who  shall  be 
born  and  in  esse  during  the  con- 
tinuance of  the  particular  estate  in 
possession,  and  no  further.  ...  To 
this  intent  also  he  vouches  Had- 
don's  Case,  28  or  18  Eliz.  Regina, 
Rot.  in  the  Common  Bench,  where 
the  case  was  that  Haddon  devises 
to  one  for  life,  and  so  afterwards 
to  each  person  who  should  be  his 
heir,  for  life,  and  this  was  adjudged 
an  estate  in  possession  to  the  one, 
and  remainder  for  life  to  the  next 
heir,  and  nothing  further.  .  .  . 
Wherefore  he  concludes  this  point 
that  the  estate  of  freehold  in  re- 
mainder is  good  to  him  and  each 
son  who  was  in  esse  during  their 
lives,  and  so  of  all  the  other  persons 
hi  the  remainder  to  their  sons." 

He  therefore  lays  down  what  is 
the  Rule  against  Perpetuities  as 
governing  Lovelace  v.  Lovelace; 
the  alleged  rule  in  question  as  gov- 
erning Haddon's  Case;  and  again, 
it  would  seem,  the  Rule  against 
Perpetuities  in  the  case  at  bar. 
But  Lovelace  v.  Lovelace,  1  And. 
132,  Cro.  El.  40,  Sav.  75,  2  Leon. 
35,  did  not  raise  the  question;  and 
Haddon's  Case  does  not  seem  to  be 
reported;  and  the  report  of  Coke's 
argument,  Moore,  372,  continues: 
"But  because  this  point  of  per- 
petual freehold  does  not  tend  to 
final  judgment  of  the  case  in  ques- 
tion, he  proceeds  to  the  other 
points  more  material;"  and  the 


648  THE   RULE  AGAINST   PERPETUITIES. 

§  938.  As  to  the  second  device.  There  seems  to  have  been  a  doubt, 
in  the  sixteenth  century,  whether  in  a  devise  of  a  term  for  years  a 
limitation  over,  on  failure  of  issue,  was  good  or  bad,1  but  at  the  be- 
ginning of  the  seventeenth  century  came  the  case  of  Child  v.  Baylie* 
Here  there  was  a  devise  of  a  term  to  A.  and  his  assigns,  provided, 
that  if  A.  died  without  issue  living  at  his  death,  then  the  term  should 
go  to  B.  The  devise  over  to  B.  was  held  bad.  Now  this  was  certainly 
a  decision  that  a  gift  over  of  a  term  for  years  on  the  default  of  issue 
was  bad,  as  making  land  inalienable.  The  Court  says  the  limitation 
was  void  because  a  term  cannot  be  entailed;  because  it  was  the  gift  of 
a  possibility  upon  a  possibility;  because,  if  the  gift  to  B.  was  good, 
it  could  not  be  barred  by  A.,  and  thus  future  interests  in  chattels 
would  be  less  destructible  than  they  were  in  freeholds;  and  because, 
if  the  law  will  not  suffer  such  perpetuities  of  inheritances,  then  much 
less  will  it  suffer  perpetuities  of  chattels;  that  is,  the  Court  condemned 
the  devise  as  an  attempt  to  evade  the  rule  of  law  that  estates  tail  are 
ban-able. 

§  939.  It  is  not  entirely  easy  to  see  why  a  rule  that  a  remainder 
to  the  child  of  an  unborn  person  following  a  remainder  for  life  to  such 
person  is  void  is,  logically  or  otherwise,  the  result  of  a  rule  that  in 
a  devise  of  a  term  for  years  a  gift  over  on  failure  of  issue  is  void;  but 
let  us  assume  that  it  is. 

§  940.  At  the  argument  in  Child  v.  Baylie,  Davenport,  counsel  for 
the  losing  party,  who  may  be  regarded  as  the  father  of  the  Rule  against 
Perpetuities,  made,  it  would  seem,  this  contention:8  On  a  devise 
of  a  term  for  years  a  limitation  over  on  the  death  of  the  first  devisee 
is  good;  now,  a  gift  over  on  the  death  of  the  first  devisee  without 
leaving  issue  at  his  death  is  no  more  remote  (forreiri),  and  therefore  it 
should  be  held  good;  it  is  a  question  of  remoteness.  But  the  Court 
said:  "No."  Their  reasoning  appears  to  have  been  this:  It  is  not  a 
question  of  remoteness;  remoteness  has  nothing  to  do  with  the  matter; 
the  limitation  over  is  bad  because  it  is  an  attempt  to  entail  a  term,  to 
do,  by  granting  a  term,  what  you  cannot  do  by  giving  an  estate  tail; 
an  estate  tail  cannot  be  made  unbar r able;  you  cannot  make  an  estate 

judges  decided  the  case  on  a  point  of          *  Cro.  Jac.  459;  Palm.  48,  333; 

pleading  "sans  examining  1'auters  W.  Jones,    15;  2  Roll.   129.     See 

points  del  case."     Perrot's  Case,  ad  Duke  of  Norfolk's  Case,  3  Ch.  Cas. 

fin,  Moore,  391.  1,  34. 

1  55  153,  154,  ante.  «  Palm.  334. 


APPENDIX.  649 

tail  unbarrable  in  the  hands  of  the  first  tenant,  any  more  than  in  the 
hands  of  any  later  tenant;  a  limitation  over  on  the  death  of  a  first 
tenant  without  issue  living  at  his  death  is  no  better  than  such  a  gift 
over  on  the  death  of  any  other  tenant.  The  judgment  was  the  judg- 
ment of  all  the  judges  with  one  exception,  and  further,  it  was  approved 
by  the  heads  of  the  three  superior  Common  Law  Courts  and  by  Lord 
Keeper  North,  reversing  Lord  Chancellor  Nottingham. 

§  941.  Standing  on  these  authorities,  there  was  a  rule  that  a  lim- 
itation over  on  dying  without  issue  was  void,  without  regard  to  the 
question  whether  the  dying  without  issue  was  or  was  not  remote; 
and,  on  the  assumption  that  the  invalidity  of  a  remainder  to  the  child 
of  an  unborn  person  after  a  remainder  for  life  to  such  person  is  a 
logical  result  of  this  rule,  then  such  a  remainder  to  the  child  is  void, 
independently  of  the  Rule  against  Perpetuities,  and  without  refer- 
ence to  the  remotenes  of  limitations. 

§  942.  But  the  doctrine  of  Child  v.  Baylie,  and,  with  it,  its  supposed 
result,  was  modified  by  the  House  of  Lords,  sustaining  Lord  Notting- 
ham's decision,  in  The  Duke  of  Norfolk's  Case,  which  holds  that  such 
limitations  are  not  objectionable  if  they  are  not  remote.  It  may  be  that 
Lord  Nottingham's  decision  was  a  pretty  bold  piece  of  judicial  legis- 
lation, and  the  members  of  the  House  of  Lords  may  have  been  as  little 
versed  in  the  law  as  they  were  in  Lloyd  v.  Carew,1  but  the  decision 
has  stood  ever  since,  and  is  law  wherever  the  English  Common  Law 
now  prevails. 

§  943.  Mr.  Sweet  also  relies  on  Humberston  v.  Humberston*  In 
1717,  A.  devised  his  estate  to  trustees  in  trust  to  convey  to  B.  for  life, 
and  then  to  B.'s  first  son  for  life,  and  so  to  the  first  son  of  that  first  son 
for  life,  &c.,  and  if  no  issue  male  of  the  first  son,  then  to  the  second 
son  of  B.  for  life,  and  to  his  first  son,  &c.,  and  on  failure  of  such  issue 
of  B.,  then  to  C.  for  life,  and  to  his  first  son  for  life,  &c.,  with  remain- 
ders over  for  life  to  other  persons  for  their  lives  successively,  and  their 
respective  sons,  when  born,  for  their  lives,  without  giving  an  estate 
in  tail  to  any  of  them  or  disposing  of  the  fee.  Lord  Cowper,  C., 
said  that  an  attempt  to  make  a  perpetuity  for  successive  lives  was 
vain.  This  was  thirty  odd  years  after  the  Rule  against  Perpetuities 
was  established.  The  Chancellor  had  no  authority  to  disregard 

1  Show.  P.  C.  137.     See  §  178,          •  1  P.  Wins.  332. 
ante. 


650  THE  RULE  AGAINST  PERPETUITIES. 

the  decision  of  the  House  of  Lords  in  The  Duke  of  Norfolk's  Case, 
and,  I  respectfully  submit,  there  is  no  reason  to  suppose  that  he 
intended  to  do  so  and  to  fall  back  upon  the  unmodified  doctrine  of 
Child  v.  Baylie. 

§  944.  The  novel  thing  done  by  Lord  Cowper,  C.,  in  Humberston  v. 
Humberston  was  the  introduction  of  cy  pres.  The  justification  of 
this  was,  first,  that  the  case  was  one  of  executory  trust,  and  that  in 
such  a  case  the  trust  can  be  executed  to  carry  out  the  intention  of 
the  parties,  as  in  the  more  common  case  where  an  executory  trust 
is  so  executed  to  avoid  the  application  of  the  Rule  in  Shelley's  Case; 
and  secondly,  that  it  was  not  then  clearly  settled  that  the  construction 
of  a  will  could  not  be  altered  to  avoid  the  application  of  the  Rule 
against  Perpetuities.  It  is  true  that  though  it  is  now  settled  that  the 
Rule  against  Perpetuities  ought  not  to  be  allowed  to  affect  construc- 
tion, yet  the  doctrine  of  cy  pres  still  continues,  and,  what  is  more,  is 
applied  to  executed  trusts  and  to  legal  estates.  But  it  has  been  re- 
garded with  disfavour  by  the  most  eminent  judges,  and  must  fairly,  it 
is  submitted,  be  said  to  be  an  anomalous  exception  to  the  Rule  against 
Perpetuities.1 

§  945.  To  sum  up: 

1.  The  dislike  of  the  Courts  to  the  tying  up  of  land  was  formulated 
in  certain  rules,  for  instance,  that  no  tenant  in  tail  could  be  restrained 
from  barring  the  estate  tail. 

2.  There  is  no  evidence  of  the  establishment  of  a  rule,  prior  to 
the  Rule  against  Perpetuities,  that  after  a  life  estate  to  an  unborn 
person  a  remainder  to  his  child  is  void,  unless  it  is  implied  in  the 
doctrine  of  Child  v.  Baylie  that  a  limitation  of  a  term  after  a  failure 
of  issue  is  void  without  regard  to  its  remoteness. 

3.  The  Rule  against  Perpetuities  modified  this  doctrine  of  Child 
v.  Baylie,  by  providing  that  no  limitation  is  void  unless  it  is  too 
remote,  and  therefore  the  limitation  to  the  child  of  an  unborn  person 
is  not  void  unless  it  is  too  remote. 

4.  The  idea  that  such  remainder  to  said  child  is  void  continued 
to  exist  because  of  the  notion  that  a  possibility  upon  a  possibility  is 
void,  a  notion  which  Mr.  Sweet  repudiates. 

5.  A  decision  that  such  remainder  is  void,  apart  from  the  doctrine 
of  remoteness  established  by  the  Rule  against  Perpetuities,  was 
first  made  in  Whitby  v.  Mitchell. 

1  See  §  877,  ante. 


APPENDIX. 


651 


§  946.  No  one  that  I  am  aware  of  claims  that  public  policy  calls  for 
the  Rule  in  Whitby  v.  Mitchell,  or  that  such  policy  requires  contingent 
remainders  to  be  subjected  to  a  fetter  which  is  not  imposed  upon 
other  future  interests.  The  Rule  is  maintained  only  as  an  alleged 
relic  of  antiquity  which  many  eminent  men  have  believed  to  be 
genuine. 

§  947.  I  have  said  that  if  a  case  of  a  remainder  to  the  unborn  child 
of  an  unborn  child  had  come  before  the  Courts,  they  would,  it  is  very 
likely,  have  made  some  rule  to  strike  it  down.  But  further  than 
that,  I  concede  that  if  the  case  had  come  before  them  at  the  beginning 
of  the  seventeenth  century  they  would  not  improbably,  in  the  spirit 
of  Child  v.  Baylie,  have  laid  down  a  rule  like  that  in  Whitby  v.  Mitchell, 
and  that  Popham,  C.  J.,  would  have  supported  it  on  the  ground  that 
the  remainder  was  a  possibility  on  a  possibility.  But  fortunately 
the  case  did  not  come  before  the  Courts;  and  towards  the  close  of  that 
century,  in  The  Duke  of  Norfolk's  Case,  the  House  of  Lords,  following 
the  lead  of  an  enlightened  and  brave  judge,  overthrew  Child  v.  Baylie, 
and,  unhampered  by  scholastic  notions,  placed  the  law  of  future  in- 
terests upon  a  rational  basis.1 


1  Mr.  Sweet  has  replied  to  this, 
29  Law  Quart.  Rev.  304,  but  his 
article  does  not  seem  to  contain 
anything  which  calls  for  additional 
remark. 

To  place  the  rule  in  Whitby  v. 
Mitchell  on  a  rational  ground,  it 
would  seem  to  be  necessary  to  treat 
it  as  a  particular  application  of 
some  general  rule  against  "  double 
contingent  remainders."  The  court 
in  Whitby  v.  Mitchell  so  treated  it; 
and  so  have  the  courts  in  most  of 
the  cases  in  which  it  has  been  re- 
ferred to,  although  without  defining 
such  general  rule.  Moreover,  if 
contingent  remainders,  as  Mr.  Sweet 
contends,  are  not  subject  to  the 
Rule  against  Perpetuities,  it  seems 
almost  necessary  to  have  some  such 
general  rule,  which  would  include 
the  particular  case  in  Whitby  v. 
Mitchell.  (Though  Mr.  Sweet 


thinks  that  it  would  not  do  so,  be- 
cause the  rule  in  Whitby  v.  Mitchell 
should  apply  to  executory  devises, 
a  view  in  which  he  seems  to  stand 
alone.  See  12  Columbia  Law  Rev. 
201.)  It  therefore  seems  super- 
fluous and  confusing  to  treat  that 
case  as  standing  upon  a  special  doc- 
trine. In  In  re  Park's  Settlement, 
[1914]  1  Ch.  595,  the  Court  at- 
tempted actually  to  apply  such  a 
general  rule;  the  result  is  absurd, 
as  Mr.  Sweet  concedes.  A  limita- 
tion by  deed  of  freehold  property 
to  the  issue  of  a  bachelor,  after  a 
life  estate  to  his  widow,  was  held 
void,  on  the  ground  that  as  the 
widow  might  be  a  person  not  born 
at  the  date  of  the  deed,  the  limita- 
tion to  her  children  would  be  to 
the  unborn  issue  of  an  unborn 
parent;  notwithstanding  the  evi- 
dent fact  that  the  remainder  to  the 


652 


THE   RULE  AGAINST  PERPETUITIES. 


L. 

GENERAL  TESTAMENTARY  POWERS  AND  THE  RULE 
AGAINST  PERPETUITIES.1 

§  948.  How  does  the  Rule  against  Perpetuities  affect  appointments 
under  general  testamentary  powers?    Or,  to  put  the  question  in  a  con- 


issue  would  be  vested  at  the  death 
of  the  father. 

Mr.  Sweet,  in  his  latest  articles 
upon  this  subject,  ;30  Law  Quart. 
Rev.  135,  353,  attempts  to  define 
the  supposed  rule  against  "double 
contingent  remainders,"  treating  it 
as  distinct  from  the  rule  in  Whitby 
v.  Mitchell;  but  in  order  to  do  so 
he  is  compelled  to  disapprove  In  re 
Park's  Settlement,  the  only  case 
squarely  decided  on  such  a  general 
rule,  and  the  language  of  the  Court 
in  In  re  Frost,  43  Ch.  D.  346,  and 
Whitting  v.  Whitting,  53  Sol.  J.  100, 
which  the  Court,  in  In  re  Park's 
Settlement,  with  entire  consistency, 
considered  to  lead  to  the  decision 
there  made.  "Having  regard  to 
these  authorities  it  is  difficult  to 
see  how  the  learned  judge  could 
have  decided  differently,  but  the 
result  is  unsatisfactory,  not  to  say 
absurd."  30  Law  Quart.  Rev. 
135.  If  In  re  Park's  Settlement  is 
regarded  as  an  application  of  the 
identical  doctrine  which  was  applied 
in  Whitby  v .  Mitchell  (and  this  ap- 
pears to  have  been  the  Court's  own 
view),  the  result  is  likewise  absurd. 
See  27  Harv.  Law  Rev.  752.  The 
state  of  affairs  seems  to  be,  there- 
fore, that  the  English  courts,  from 
Whitby  v.  Mitchell  to  In  re  Park's 


Settlement,  have  attempted  to  ap- 
ply an  ill-defined  rule  against  double 
contingent  remainders,  which  they 
have  not  clearly  distinguished  from 
the  old  discredited  rule  against  "|a 
possibility  on  a  possibility,"  and 
have  finally  arrived  at  absurd  re- 
sults. Mr.  Sweet,  on  the  other 
hand,  after  long  cogitation  and 
"some  hesitation,"  and  by  the  ex- 
ercise of  much  acuteness  in  drawing 
distinctions,  has  elaborated  two  in- 
dependent rules  (and  perhaps  a  third, 
of  whose  existence  he  is  not  sure) 
which  are  fairly  definite  and  logi- 
cal, and  not  absolutely  inconsistent 
in  theory  with  each  other  or  with 
the  Rule  against  Perpetuities, — but 
which  do  not  agree  with  the  cases. 
Limitations  which  Mr.  Sweet,  and 
every  one  else,  has  always  supposed 
were  good  (e.  g.,  those  in  In  re 
Park's  Settlement),  the  latest  cases 
say  are  bad.  Limitations  which 
Mr.  Sweet  says  would  be  bad  (e.  g., 
an  executory  devise,  not  objection- 
able under  the  Rule  against  Perpe- 
tuities, to  the  children  of  an  unborn 
person,  following  an  executory  de- 
vise to  their  parent),  the  cases,  at 
least  by  implication,  and  the  mod- 
ern text-writers,  except  Mr.  Sweet, 
treat  as  good.  This  condition  of 
things  shows  the  danger  of  at- 


1  These  remarks  were  first  pub- 
lished 26  Harv.  Law  Rev.  720  with 


the  exception  of  the  notes  at  the 
end  of  §§  962  and  969,  post. 


APPENDIX.  653 

crete  form:  If  personal  property  is  bequeathed  in  trust  to  pay  to 
such  person  as  A.  shall  by  will  appoint,  and  A.  appoints  by  will  to  B.f 
who  was  not  living  at  the  death  of  the  testator,  for  life,  and  on  B.'s 
death  to  his  children,  is  the  appointment  to  B.'s  children  good?  l 

§  949.  I  have  expressed  the  opinion  that  such  appointment  is  bad.* 
My  learned  friend,  Professor  Kales,  in  an  article  which  he  kindly 
communicated  to  me,  and  has  now  published,3  thinks  that  the  ap- 
pointment is  good.  Mr.  Kales's  suggestions  on  the  law  deserve  so 
much  respect,  and  to  me  personally  have  been  so  often  valuable,  that 
I  am  moved  to  say  a  word  or  two  why  I  cannot  adopt  them  in  this 
matter. 

§  950.  In  judging  of  the  remoteness  of  an  appointment,  the  time 
must  be  calculated  from  the  date  of  the  creation  of  the  power  and  not 
from  the  date  of  its  execution.4  The  reason  of  this  is  obvious:  if  a 
limitation  would  be  bad,  as  too  remote,  it  cannot  be  made  good  by  del- 
egating the  power  to  make  it  to  some  one  else.  If  what  is  given  to 
the  donee  of  a  power  is  an  authority  to  act  for  the  settlor  or  testator, 
then  the  appointment  by  the  donee  must  be  considered  as  an  appoint- 
ment by  the  settlor  or  testator  himself.6  Now  to  this  there  is  an  ap- 
parent exception,  which  comes  about  in  this  wise:  Sometimes  what  is 
in  form  an  authority  from  a  testator  or  settlor  to  make  a  limitation  is 
in  substance,  not  an  authority  to  make  a  limitation,  but  a  limitation  to 
the  donee  himself,  a  gift  to  him  in  fee.  Such  is  the  case  when  a  general 
power  is  given  to  A.  to  appoint  by  deed.  A.  can  there  appoint  to  him- 
self. When  this  is  the  case,  A.,  the  nominal  donee,  instead  of  going 

tempting  to  impose  other  restric-  l  26  Harv.  Law  Rev.  64. 
tions  upon  future  limitations  than  4  I  have  pointed  out,  §§  523- 
the  Rule  against  Perpetuities.  The  523  6,  ante,  that  this  does  not  re- 
absurdity  of  the  result  in  In  re  quire  us  to  give  the  words  used  in 
Park's  Settlement,  and  the  difficulty  executing  a  power  a  meaning  dif- 
of  distinguishing  that  case  from  ferent  from  that  with  which  they 
Whitby  v.  Mitchell,  show  the  error  are  used  by  the  donee  of  the  power, 
of  the  first  step  which  was  taken  in  6  "One  to  whom  a  power  of 
Whitby  v.  Mitchell.  See  §  298  hh,  appointment  is  given  by  will 
ante.  stands  to  the  testator  substantially 

1  I  put  the  case  in  this  form  to  in  the  position  of  an  agent  toward 

avoid  running  against  any  pecu-  his  principal.    An  agent  cannot  do 

liarities,  real  or  supposed,  of  con-  that   which   the   principal   cannot 

tingent  remainders  in  realty.  do."    Per  Baldwin,  C.  J.,  in  Bart- 

1  §§  526-526  c,  ante.  lett  v.  Sears,  81  Conn.  34,  44. 


654  THE   RULE  AGAINST  PERPETUITIES. 

through  the  form  of  appointing  to  himself,  may,  so  far  as  any  question 
of  remoteness  is  concerned,  deal  with  the  property  as  if  he  had  gone 
through  this  form,  and  may  treat  it  as  he  could  any  property  of  his 
own.  That  is,  when  A.  makes  what  purports  to  be  an  appointment 
under  such  a  power,  what  he  really  does  is  to  make  an  appointment  to 
Mmself,  and  then  to  grant  his  own  property  to  the  person  named  as 
appointee.1 

§  951.  Mr.  Kales  agrees  with  the  general  rule,  and  with  the  ex- 
ception. The  difference  between  us  is  this:  Mr.  Kales  thinks  the 
exception  covers  not  only  general  powers,  exercisable  by  deed,  but 
also  general  testamentary  powers.  This  I  deny.  Mr.  Kales's  argument 
is  this:  He  takes  up  an  expression,  which  I  had  used,  that  the  exception 
applies  when  the  donee  is  practically  owner,  and  says  that  the  question 
whether  he  is  practically  owner  is  to  be  determined  at  the  time  of  the 
exercise  of  the  power,  and  that  when  he  exercises  the  power  by  will 
he  is  practically  owner;  and  he  illustrates  thus:  If  a  power  is  given  to 
appoint  by  deed  after  the  donee  shall  be  married,  he  cannot  appoint 
before  he  is  married;  his  power  to  appoint  is  subject  to  the  condition 
precedent  of  marriage,  but  after  his  marriage  he  can  deal  with  the 
property  as  his  own;  so,  Mr.  Kales  says,  if  a  general  testamentary  power 
is  given,  it  is  a  condition  precedent  that  the  donee  shall  die,  but,  when 
he  has  died,  the  condition  precedent  has  been  fulfilled,  and  he  can  deal 
by  his  will  with  the  property  as  if  it  were  his  own. 

§  952.  But  a  man  cannot,  in  the  eye  of  the  law,  be  at  the  same  time 
alive  and  dead.  So  long  as  he  is  alive,  the  condition  necessary  for 

1  An     analogous     situation     is  erty,  though  there  was  no  formal 

presented  by  Routledge  v.  Dorril,  appointment  by  the  mother  to  the 

2  Ves.  Jr.  357.     There  a  woman,  daughter.     But  in  the  same  case 

having  by  her  marriage  settlement  the  mother  made  a  will  in  which 

an  exclusive  power  to  appoint  a  she  appointed  another  part  of  the 

fund  among  her  issue,  joined  in  the  fund   to   the   daughter's   children, 

marriage  settlement  of  a  daughter,  The    former    transaction    was    re- 

by  which  a  part  of  the  fund  was  garded  as  an  appointment  by  the 

put  in  trust  for  the  daughter  for  mother   to    the   daughter,    and   a 

life,  with  gift  over  to  the  daughter's  settlement  by  the  daughter.     The 

children.     The  gift  over  was  held  second  could  not  be  regarded  as  an 

good;  that  is,  the  daughter's  mar-  appointment  to  the  daughter,  but 

riage  settlement  was  regarded  as  was  an  appointment  to  her  chil- 

an  appointment  by  the  mother  to  dren  directly  and  was  bad.     See 

the  daughter  and  a  settlement  by  §§  528,  529,  ante. 
the  daughter  as  of  her  own  prop- 


APPENDIX.  655 

the  exercise  of  the  power  is  not  fulfilled,  and  after  he  is  dead  he  cannot 
be  an  appointee.  And  this  is  not  only  so  as  a  metaphysical  necessity. 
When  a  donee  is  given  a  general  power  by  deed  on  his  marriage,  the 
creator  of  the  power  means  to  give  the  nominal  donee  on  his  marriage 
the  absolute  interest  in  the  property;  he  does  not  mean  to  delegate  his 
own  right  to  make  a  limitation;  but  when  he  gives  a  testamentary 
power,  he  distinctly  means  that  the  donee  shall  have  only  a  delegated 
authority;  he  does  not  mean  at  any  time,  or  on  the  performance  of 
any  condition,  to  make  a  gift  to  the  donee  himself.  When  there  is  a 
power  by  deed  given,  the  creator  of  the  power  means  that  at  some  time 
or  on  some  condition  the  donee  shall  have  in  substance  the  fee.  When 
a  testamentary  power  is  given,  the  creator  as  distinctly  means  that 
the  donee  shall  never  have  the  fee. 

§  953.  There  is  no  dispute  that  the  exception  does  not  extend  to 
special  powers.  Now,  as  a  practical  matter,  from  the  point  of  view  of 
the  Rule  against  Perpetuities,  there  is  no  difference  between  a  testa- 
mentary general  power  and  a  special  power. 

§  954.  Suppose  in  the  first  place  A.  gives  property  to  B.  for  life, 
with  a  power  to  appoint  by  will  to  B.'s  issue  (a  special  power),  andB. 
appoints  to  his  son  C.,  who  was  born  after  A.'s  death,  for  life,  and  on 
C.'s  death  to  his  issue  living  at  his  death.  The  gift  to  C.'s  issue  is 
unquestionably  bad,  as  it  is  to  vest  on  the  death  of  a  person  born 
after  A.'s  death. 

§  955.  Suppose,  in  the  second  place,  that  A.  gives  property  to  B.  for 
life,  with  a  power  of  appointment  by  will  to  whomsoever  he  pleases 
(a  general  power),  and  B.  appoints  to  his  son  C.,  who  was  born  after 
A.'s  death,  for  life,  and  on  C.'s  death  to  his  issue  living  at  his  death. 
The  limitations  of  the  property  are  precisely  the  same  in  both  cases; 
in  both  it  is  tied  up  during  the  lives  of  B.  and  C.,  and  on  C.'s  death 
given  to  his  surviving  children.  Practically  there  is  absolutely  no 
difference.  And  yet  if  appointments  under  general  testamentary 
powers  are  referred  to  the  time  of  their  exercise,  the  gift  to  C.'s  chil- 
dren is  bad  in  one  case  and  good  in  the  other. 

§  956.  The  donee  of  a  power  may  be  a  person  living  at  the  date  of 
the  settlement  or  of  the  testator's  death,  or  he  may  be  a  person  then 
unborn. 

§  957.  Let  us  take  the  latter  first.  First.  When  the  power  is  given 
to  an  unborn  person.  The  typical  case  is  when,  by  a  marriage  set- 
tlement, property  is  given  to  the  husband  and  wife  for  their  joint 


656  THE  RULE  AGAINST   PERPETUITIES. 

lives,  and  on  their  deaths  to  such  one  or  more  of  the  children  as  the 
parents  or  the  survivor  of  them  may  appoint.  Here,  if  the  surviving 
parent  appoints  to  such  persons  as  any  one  of  the  children  may  by 
deed  appoint,  an  appointment  by  the  child  is  good,  Bray  v.  Bree;1 
but  if  the  power  given  by  the  surviving  parent  to  its  child  is  testa- 
mentary, an  appointment  by  the  child  is  bad  for  remoteness.2  Mr. 
Kales  recognizes  that  these  cases  state  the  law  correctly;  but  he 
says  they  do  not  apply  when  the  power  is  given  to  a  living  person. 
Let  us  take  that  up. 

§  958.  Second.  When  the  power  is  given  to  a  living  person.  The 
distinction  that  Mr.  Kales  makes  between  this  case  and  the  former 
is:  In  that  the  power  itself  is  too  remote,  while  in  this  the  power 
is  good  in  its  inception,  and  if  there  is  remoteness  it  is  only  in  the 
appointment.  But  here  an  expression  which  I  may  have  used,  fol- 
lowing other  authorities,  has,  I  think,  led  Mr.  Kales  into  error.  Re- 
moteness, in  connection  with  the  Rule  against  Perpetuities,  is  a  quality 
to  be  attributed  to  an  estate  or  interest;  a  power  is  neither,  and  re- 
moteness is  not  properly  to  be  predicated  of  it. 

§  959.  It  is  true  that  no  appointment  under  a  power  which  may  be 
exercised  later  than  twenty-one  years  after  a  life  in  being  is  good, 
but  it  is  not  the  whole  truth,  and  it  does  not  expressly  state  the 
reason  why  an  estate  appointed  under  such  a  power  is  too  remote. 
The  reason  is  this:  No  interest  is  good  if  its  vesting  is  subject  to  a 
condition  precedent  which  may  be  fulfilled  beyond  the  required  limits; 
the  vesting  of  an  interest  appointed  under  a  power  is  subject  to  the 
condition  precedent  of  the  power  being  exercised;  if  the  power  can  be 
exercised  beyond  the  required  limits,  the  condition  precedent  may  be 
fulfilled  beyond  the  limits,  and  therefore  the  interest  appointed  under 
the  power  will  be  too  remote.8 

§  960.  But  the  exercise  of  a  power  may  not  be  the  only  condition 
precedent  to  the  vesting  of  an  appointed  estate,  and  therefore  the  ex- 
ercise of  a  power  may  be  confined  to  a  life  in  being,  and  yet  no  good 
appointment  can  be  made  under  it.  For  instance,  a  power  may  be 
given  to  a  living  person  to  make  an  appointment  to  take  effect  upon 


1  2  Cl.  &  F.  453;  $  477,  ante.  Tredennick,  [1900]  1 1.  R.  354.    See 

*  Wollaston    v.  King,   L.    R.  8  §§  526,  526  a,  ante. 

Eq.  165.     Morgan  v.  Gronow,  L.  R.  »  §  474  a,  ante. 

16    Eq.    1,   9,    10;   Tredennick   v. 


APPENDIX.  657 

the  indefinite  failure  of  some  one's  issue.  No  good  appointment  can 
be  made  under  this  power.1 

§  961.  When  a  testamentary  power  is  given  to  a  living  person,  two 
conditions  precedent  must  be  fulfilled  in  order  that  an  estate  ap- 
pointed under  it  shall  vest.  The  first  condition  precedent  is  that  the 
power  be  exercised  by  the  donee;  as  the  donee  is  alive  when  the  power 
is  created,  this  condition  precedent  must  be  fulfilled  within  or  at  the 
end  of  a  life  in  being,  and  therefore  its  existence  will  not  render  an  ap- 
pointment under  the  power  too  remote.  But  there  is  another  con- 
dition precedent,  namely,  that  the  appointed  estate  vest  within 
twenty-one  years  after  a  life  in  being,  and  accordingly  an  appointed 
estate  which  may  not  vest  within  that  time  is  too  remote.  Thus,  if 
a  general  testamentary  power  is  given  to  A.,  and  A.  appoints  to  B., 
an  unborn  person,  for  life,  and  after  his  death  to  B.'s  surviving  issue, 
the  appointment  to  B.  is  good,  because  both  the  conditions  prece- 
dent must  be  fulfilled  within  the  required  limits,  but  the  appointment 
to  B.'s  surviving  issue  is  too  remote,  because,  though  the  first  of  the 
conditions  precedent  cannot  be  fulfilled  later  than  a  life  hi  being, 
the  second  may  be. 

§  962.  Or,  in  other  words,  an  appointment  under  a  testamentary 
power  is  subject  to  the  condition  precedent  that  a  life,  the  only  life  in 
question,  has  terminated;  the  estate  appointed  will  therefore  be  too 
remote  unless  it  must  vest  within  twenty-one  years  after  the  death  of 
the  donee,  and  this  is  true  whether  the  donee  is  alive  or  is  an  unborn 
person.  If  he  is  an  unborn  person,  no  appointment  will  be  good, 
because  of  another  condition  precedent,  namely,  the  exercise  of  the 
power  within  the  period  required;  but  the  reason  why  a  power  exer- 
cisable  by  deed  is  good  is  the  same  whether  the  power  be  to  an  unborn 
or  to  a  living  person,  and  that  is,  because  such  a  power  is  not  really 
a  power  at  all,  but  is  a  direct  limitation  in  fee.* 

1  Bristow  v.  Boothby,  2  S.  &  referred  to  the  date  of  the  creation 

St.  465;  §  476  a,  ante.  of  the  power,  —  and  a  reason  which 

1  If  a  general  testamentary  would  not  be  applicable  to  ap- 
power  could  be  considered  as  mak-  pointments  under  such  a  power  by 
ing  the  donee  practically  the  abso-  a  donee  who  was  not  living  at  the 
lute  owner,  that  would  be  a  reason  creation  of  the  power.  The  practi- 
why  appointments  under  such  a  cal  ownership  supposed  to  be  con- 
power  by  a  donee  living  at  the  ere-  ferred  on  the  donee  would  not  arise 
ation  of  the  power  should  not  be  until  the  donee's  death,  which,  in 


658  THE   RULE   AGAINST  PERPETUITIES. 

§  963.  As  to  the  authorities:  That  the  remoteness  of  an  estate  ap- 
pointed under  a  general  testamentary  power  must  be  calculated  from 
the  time  of  the  creation  of  the  power  in  the  case  when  the  power  is 
given  to  a  living  person  as  well  as  when  it  is  given  to  an  unborn 
person,  the  leading  authority  is  In  re  Powell's  Trusts,1  in  which  the 
decision  was  made  by  James,  V.  C.  This  decision  has  been  followed 
by  the  American  courts.  Lawrence's  Estate.2  Boyd's  Estate.3  Genet 
v.  Hunt.*  Reed  v.  Mcllvain.5  Thompson  v.  Pew.6 

§  964.  There  are  two  English  cases  and  one  Irish  which  are  contra, 
and  hold  that  a  general  testamentary  power  to  a  living  person  should, 
like  a  general  power  by  deed,  be  calculated,  on  the  question  of  re- 
moteness, from  the  time  of  the  exercise  of  the  power,  and  not  from  the 
time  of  its  creation.  These  cases  are  Rous  v.  Jackson,'1  ,  In  re 
Flower*  and  Stuart  v.  Babington.9  The  last  two  cases  simply 
follow  and  rest  upon  Rous  v.  Jackson,  and  that  case  is  the  only 
one  which  needs  to  be  considered. 

§  965.  Mr.  Justice  Chitty,  who  was  the  judge  in  that  case,  recog- 
nizes that  he  is  differing  from  In  re  Powell's  Trusts,  and  that  "the 
question  therefore  arises  whether  the  decision  [in  that  case]  is  con- 
sistent with  the  course  of  authorities."  He  comes  to  the  conclusion 
that  "the  Vice  Chancellor  in  that  case  fell  into  an  error,"  and  that 
"there  must  be  some  error,  some  slip,  in  the  decision  of  James,  V.  C., 
in  In  re  Powell's  Trusts." 

§  966.  The  statement  of  the  authorities  which  Chitty,  J.,  deems  in- 
consistent with  the  decision  in  In  re  Powell's  Trusts  he  gives  in  the 
following  passage:  "Mr.  Butler  and  Lord  St.  Leonards  both  treat  a 

the  case  of  an  unborn  donee,  would          3  199  Pa.  487. 

be  too  remote  an  event.    It  is  sub-          *  113  N.  Y.   158    (1889).     The 

mitted,  however,  that  it  is  not  pos-  case  of  Frear  v.  Pugsley,   9  Misc. 

sible  to  treat  a  general  testamentary  N.  Y.  316,  contra,  is  only  a  decision 

power  as  making  the  donee  practi-  of  a  single  judge  at  Special  Term, 

cally  the  absolute  owner.     §§  5206,  made  without  discussion,    and  in 

952,  ante;  969,  note,  post.    The  idea  view  of  Genet  v.  Hunt,  need  not 

of   a   practically   absolute   owner-  be  considered. 

ship  which  does  not  arise  until  the          *  113  Md.  140  (1910). 

owner's  death  involves  a  contradic-  *  214  Mass.  520,  523.     A  mere 

tion  in  terms.  dictum,  but  a  distinct  one. 

1  39  L.  J.  Ch.  188  (1869);    7  L.  R.  29  Ch.  D.  521  (1885). 
§  526,  ante.  «  55  L.  J.  Ch.  200  (1885). 

»  136  Pa.  354  (1890).  •  L.  R.  27  Ir.  551  (1891). 


APPENDIX.  659 

general  power  of  appointment  as  outside  the  rule  against  perpetuities. 
Lord  St.  Leonards  in  his  work  on  Powers  [Sugden  on  Powers  (8th  ed.)], 
p.  394,  says:  'A  general  power  is,  in  regard  to  the  estates  which  may 
be  created  by  force  of  it,  tantamount  to  a  limitation  in  fee,  not  merely 
because  it  enables  the  donee  to  limit  a  fee,  which  a  particular  power 
may  also  do,  but  because  it  enables  him  to  give  the  fee  to  whom  he 
pleases.'  He  draws  no  distinction  between  a  power  exercisable  by 
deed  or  will  or  by  will  only,  and  it  appears  to  me  to  make  no  difference 
by  what  instrument  the  power  is  made  exercisable.  Lord  St.  Leonards 
also  says,  p.  395,  'Therefore,  whatever  estates  may  be  created  by  a 
man  seised  in  fee  may  equally  be  created  under  a  general  power  of 
appointment;  and  the  period  for  the  commencement  of  the  limitations 
in  point  of  perpetuity,  is  the  time  of  the  execution  of  the  power,  and 
not  of  the  creation  of  it.'  He  goes  on  to  quote  Mr.  Powell's  note  to 
Fearne's  Executory  Devises,  p.  5,  in  favour  of  the  contrary  opinion, 
and  in  the  result  states  that  there  appears  to  be  no  solid  principle  upon 
which  the  distinction  taken  by  Mr.  Powell  can  be  supported,  because 
the  question  whether  the  limitations  are  good  does  not  depend  on  the 
fact  that  the  donee  of  the  power  has  also  the  fee  hi  default  of  ap- 
pointment, and  that  you  can  create  the  same  estates  and  limitations 
under  a  general  power  of  appointment  as  you  can  where  you  have 
the  fee.  There  are  remarks  of  other  text-writers  to  the  same  effect, 
and  I  refer  particularly  to  those  of  Mr.  Butler,  who  says  that  this 
proposition  is  established  'after  a  series  of  cases.'  Butler's  Coke 
upon  Littleton,  272  a. " 

§  967.  But  the  learned  judge  does  not  give  all  that  is  said  by  the 
authors  whom  he  cites,  and  what  he  omits  shows  beyond  doubt  that 
they  were  referring  to  powers  exercisable  by  deed,  for  the  language  in 
the  omitted  places  is  utterly  inapplicable  to  general  testamentary 
powers.  Thus,  at  the  end  of  the  first  extract  from  his  book  on  Powers, 
Lord  St.  Leonards,  after  the  word  "pleases,"  adds:  "he  has  an  abso- 
lute disposing  power  over  the  estate,  and  may  bring  it  into  the  market 
whenever  his  necessities  or  wishes  may  had  him  to  do  so."  So  when 
considering  Powell's  note,  Lord  St.  Leonards  says1:  "To  take  a  dis- 
tinction between  a  general  power  and  a  limitation  in  fee,  is  to 
grasp  at  a  shadow  whilst  the  substance  escapes.  By  the  creation  of 
the  power  no  perpetuity,  not  even  a  tendency  to  a  perpetuity,  is 

1  Powers,  396. 


660 


THE   RULE   AGAINST   PERPETUITIES. 


created.  The  donee  may  sell  the  estate  the  next  moment."  So  Butler, 
in  his  note  to  Co.  Lit.  271  b,  says:  "A  general  power  of  appointment 
has  no  tendency  to  a  perpetuity,  as  from  its  very  nature,  it  enables  the 
party  to  vest  the  whole  fee  in  himself,  or  in  any  other  person,  and  to 
liberate  the  estate  entirely,  from  every  species  of  limitation,  incon- 
sistent with  that  fee." 

§  968.  It  should  be  observed  that  whereas  in  America  testamentary 
powers  are  more  common  than  powers  exercisable  by  deed,  in  England 
powers  exercisable  by  deed,  or  by  deed  and  will,  are  the  more  usual; 
and  when  English  judges  and  writers  speak  of  a  general  power  they 
ordinarily  mean  powers  which  can  be  exercised  by  deed  as  well  as  by 
will. 

§  969.  It  is  therefore  submitted  that  the  American  courts  have 
done  well,  both  on  principle  and  on  authority,  in  following  In  re 
Powell's  Trusts  rather  than  the  later  case  of  Roiis  v.  Jackson.1 


1  The  advantage  from  using  a 
power  instead  of  making  a  direct 
gift  is,  not  that  you  can  do  through 
a  power  what  you  cannot  do  di- 
rectly, but  that  a  limitation  which 
would  be  valid,  but  which  it  could 
not  be  originally  seen  would  affect 
a  desired  end,  may  be  later  seen  to 
do  so.  See  an  instance,  §  523  e, 
ante. 

Mr.  Kales  appended  a  note  to 
this  article,  26  Harv.  Law  Rev. 
727.  It  seems  to  be  merely  a  re- 
statement of  the  position  taken  in 
his  former  article.  In  an  article  in 
27  Harv.  Law  Rev.  709,  J.  L. 
Thorndike,  Esquire,  supports  Mr. 
Kales's  view.  It  is  submitted  that 
neither  Mr.  Kales  nor  Mr.  Thorn- 
dike  have  met  the  arguments  of- 
fered in  §§  5266,  952,  ante.  The 
distinction  between  a  general  testa- 
mentary power  and  a  general  power 
exercisable  by  deed,  that  the  donee 
in  the  former  case  cannot  appoint  to 
himself,  is  not  incidental  but  es- 
sential, and  involves  a  real  practical 


difference.  The  donee  of  a  testa- 
mentary power  cannot  sell  the 
property. 

When  the  appointment  is  made 
by  deed,  the  life  estate  has  not  ex- 
pired at  the  time  of  appointment. 
The  fact  that  the  life  estate  has  not 
expired  has  a  practical  bearing  on 
the  question  of  the  date  from 
which  the  Rule  against  Perpetuities 
should  run.  In  framing  successive 
limitations,  the  Rule  allows  the 
settlor  a  life  or  lives,  and  twenty- 
one  years  more,  within  which  in- 
terests may  be  made  to  commence. 
If  a  life  estate  is  given  to  A.,  a  living 
person,  with  a  power  of  testamen- 
tary appointment,  the  life  allowed 
by  the  Rule  is  used  up  at  his  death, 
and  any  estates  arising  under  the 
appointment  ought  to  vest  within 
twenty-one  years  (unless  they  are 
limited  by  some  other  lives  in  ex- 
istence at  the  time  of  the  settle- 
ment). There  is  no  interval  of 
time  between  the  expiration  of  the 
life  estate  and  the  commencement 


APPENDIX. 


661 


M. 

VESTED   REMAINDERS   AND   THE   RULE   AGAINST 
PERPETUITIES. 

§  970.  A  VESTED  remainder  is  defined  as  a  future  estate  which  takes 
effect  as  a  present  estate  immediately  upon  the  expiration  of  the  pre- 
ceding estate  or  estates  as  originally  limited,1  and  is  ready  at  every 
moment  during  its  continuance  to  come  into  possession  whenever  and 
however  the  preceding  estates  determine.2  That  is  to  say,  a  vested 
remainder  is  a  future  estate  that  is  subject  to  no  condition  precedent 
except  the  termination  of  the  preceding  estate.  An  ideal  system  of 
law  would  perhaps  not  attach  so  much  importance  as  does  the  common 
law  to  the  distinction  between  the  interest  thus  defined  and  all  other 
future  interests.3  Sometimes  it  is  uncertain  whether  the  preceding 
estate  will  ever  terminate,  as  in  the  case  of  a  remainder  after  an  estate 
tail.  On  the  other  hand,  not  every  estate  which  is  subject  only  to  a 
condition  precedent  which  is  certain  to  be  performed  is  a  vested 
estate.4  The  common  law,  however,  does  distinguish  estates  subject 


of  the  appointed  estates  when  any 
person  has  a  power  of  present  dis- 
position. A  power  of  testamen- 
tary appointment  is  not  a  power  of 
present  disposition;  for  a  testa- 
mentary appointment  does  not 
take  effect  until  the  appointor  ia 
dead.  A  man  who  never  at  any 
time  has  the  power  of  present  dispo- 
sition never  practically  has  the  fee. 
But  if  A  is  given  a  power  of  ap- 
pointment by  deed,  at  any  time 
during  his  life,  then  the  life  allowed 
by  the  Rule  is  not  used  up.  There 
is  really  no  life  estate  limited,  but  a 
fee  is  given  to  the  donee;  and  the 
owner  of  this  fee  is  at  liberty  to 
make  a  new  settlement. 

1  §  8,  ante. 

1  §§  9,  101,  794,  ante.  This  defi- 
nition includes  reversions,  which, 
for  the  purposes  of  these  remarks, 
may  be  classed  with  vested  re- 


mainders. §  11,  ante.  For  other 
meanings  of  the  term  vested,  see 
§  118,  ante. 

s  When  a  fee  is  given,  subject  to 
an  estate  for  years,  the  so-called 
vested  remainder  after  the  estate  for 
years  is  really,  in  the  common-law 
view,  a  present  estate,  differing  en- 
tirely from  a  vested  remainder  after 
a  freehold.  §§8,  59,  ante.  Though 
this  difference,  also,  would  be  less 
important  in  an  ideal  system  than 
it  is  in  the  common  law.  For  the 
purpose  of  the  Rule  against  Per- 
petuities, an  estate  subject  to  a 
term  for  years  is  to  be  classed  with 
vested  remainders.  With  respect 
to  possession,  it  is  a  vested  future 
estate;  with  respect  to  seisin,  or 
freehold  ownership,  it  is  an  estate 
not  merely  vested  but  present. 

*  §§  201,  797,  ante. 


662  THE  RULE  AGAINST  PERPETUITIES. 

only  to  the  determination  of  the  preceding  estate  from  all  other 
future  interests,  and  various  important  consequences  depend  upon 
this  distinction. 

§  971.  The  idea  of  a  vested  remainder  is  peculiar  to  the  English  law 
of  real  estate.  It  is  unknown  to  the  law  of  other  countries.1  It  had  its 
origin  in  the  theory  of  seisin;2  and  is  not  strictly  applicable  to  personal 
property.3  It  is,  however,  practically  adopted  with  regard  to  chattels 
both  real  and  personal,  at  the  present  day;  although  the  English  text- 
writers  refuse  to  recognize  it  in  theory.  For  the  purpose  of  the  Rule 
against  Perpetuities,  at  least,  a  limitation  which  would  be  a  vested 
remainder  in  the  case  of  realty  is  treated  as  a  vested  remainder.4 

§  972.  It  is  well  settled  that  the  Rule  against  Perpetuities  does  not 
apply  to  vested  remainders.5  This  fact,  in  connection  with  the  some- 
what arbitrary  nature  of  the  discrimination  of  a  vested  remainder 
from  all  other  future  interests,  introduces  an  artificial  element  into 
the  Rule  against  Perpetuities,  —  a  Rule  which  is  in  general  very 
rational.6  Vested  remainders  have  always  been  alienable;  and  this 
fact  undoubtedly  had  an  influence  upon  the  historical  development  of 
the  Rule  hi  its  existing  form.  But  the  alienability  of  these  interests 
is  not  a  sufficient  ground  for  excluding  them  from  the  operation  of  the 

1  §  100,  note  3,  ante.    Usufructs       §§  84,  117  a;  App.  F,   §§825-829, 
are  familiar  in  the  Civil  Law,  but      ante. 

they   are   regarded   as   servitudes,  4  §§  117  a,   1176,   and  App.   F, 

jura  in  alieno  solo.     §  761,  ante.  §§  789  et  seq.,  ante. 

2  §§  8,  100,  ante.  6  §§99,  205,  209,  ante. 

3  §§81,  822,  ante.    There  could,  6  There  is  one  peculiar  sort  of 
of  course,  be  no  seisin  of  chattels  remainder  which  is  called  vested, 
real,  but  there  could  be  estates  in  and  yet  is  not  excluded  from  the 
them,  not  in  possession,  and  such  operation  of  the  Rule.    This  is  the 
estates    could   be   vested.      §  806,  so-called  vested  remainder  to  a  class, 
ante.    Whether  a  term  for  years,  to  the  number  of  whose  members  is 
begin  after  the  termination  of  a  not  yet  determined.    §§110-110  a, 
preceding  term,   but  not  carrying  205  a,   ante.     This  instance  shows 
any  reversion,  is  a  vested  interest,  how  little  relation  there  was  be- 
is  a  question  not  free  from  doubt;  tween  the  common-law  notion  of  a 
semble,  it  is  vested.     §  320,  note  5,  vested  remainder  and  the  require- 
ante.    The  true  theory  with  regard  ments  of  the  Rule  against  Perpe- 
to  chattels  personal  seems  to  be  tuities  (cf .  §  100,  ante) ;  and  that  in 
that    the   so-called   remainderman  the   application   of   the   Rule   the 
has   the  absolute   ownership,   and  courts  have  not  blindly  followed 
the  tenant  for  life  or  for  years  has  the  common-law  phraseology, 
only  a  right  of  possession  and  use. 


APPENDIX.  663 

Rule.1  It  seems  that  in  the  ideal  system  of  law  above  supposed  no 
interests  which  did  not  vest  in  possession  within  the  allotted  period 
would  be  allowed.  They  are  within  the  practical  reason  of  a  Rule 
against  Remoteness. 

§  973.  In  most  instances,  to  be  sure,  the  allowance  of  vested  re- 
mainders, which  do  not  take  effect  in  possession  until  a  remote  period, 
does  not  do  much  practical  harm.  A  vested  remainder  after  an  estate 
tail  is  destructible.  A  remainder  after  life  estates  must  vest  in  posses- 
sion not  later  than  the  end  of  lives  which  begin  within  the  limits  of 
the  Rule  against  Perpetuities.2  But  remainders  after  estates  for 
years  may  take  effect  at  very  remote  periods.3  And  so  may  possi- 
bilities of  reverter  after  determinable  fees,  where  they  are  allowed,4 
and  resulting  trusts  after  charitable  trusts.6 

§  974.  It  is  true  that  if  life  estates  to  unborn  persons,  or  estates  for 
terms  exceeding  twenty-one  years,  are  allowed,  then  reversions  after 
such  estates  must  almost  necessarily  be  recognized  as  existing.  And 
perhaps  a  remainder  vesting  at  the  remote  termination  of  a  preceding 
estate  is  no  more  objectionable  than  a  reversion  to  the  grantor  and 
his  heirs.6  But  the  principle  that  if  an  estate  begins  within  the  al- 
lotted period,  the  remoteness  of  its  termination  does  not  affect  its 
validity,7  seems  to  be  the  result  rather  than  the  cause  of  the  exclusion 
of  vested  interests  from  the  operation  of  the  Rule  against  Perpetuities. 
In  an  ideal  system  it  would  seem  to  be  necessary  to  forbid  the  creation 
of  such  particular  estates;  not,  indeed,  because  the  interests  given  to 
the  grantees  of  such  estates  were  themselves  too  remote,  but  because 
the  remainders  or  reversions  expectant  upon  them  would  vest  in  pos- 
session at  too  remote  a  period.  The  body  of  legal  doctrines  designed 
to  prevent  remote  limitations  under  such  a  system  would  no  doubt 
differ  radically  from  the  actual  Rule  against  Perpetuities,  but  it  would 
be  more  complete  and  consistent. 

1  §§  268,  269,  ante.  tinuance  of  the  life  estates.    §§  500, 

2  But  the  fact  that  such  remain-  509  b,  509  i,  ante. 
ders  may  vest  in  possession  at  a          *  §  210,  ante. 
period   beyond   the   limits   of   the          4  §  312,  ante. 
Rule  may  have  the  inconvenient          6  §  603  i,  ante. 
effect    of    rendering    wholly    void          •  Cf.  §  312,  ante. 
powers  of  appointment  which  were          7  §  232,  ante. 
intended  to  subsist  during  the  con- 


INDEX. 


INDEX. 


THE  REFERENCES  ARE  TO  THE  SECTIONS. 


ACCUMULATION.    Chap.  XX.  Section 

trust  for,  in  connection  with  estates  tail  .    .    .    462-468,  471 
gift  of  income  accumulated  beyond  limits  of  Rule  against 

Perpetuities,  void       671 

direction  to  accumulate  to  remote  period,  void  or  de- 
structible      671 

but,  if  destructible,  not  too  remote 672 

nor  within  Thellusson  Act 692 

may  be  stopped  at  once  by  one  having  vested  indefeasible 

interest 671,  672,  692 

direction  to  accumulate  not  readily  regarded  as  condition 

precedent  to  gift 673 

but  if  it  is  condition  precedent,  gift  is  bad  alto- 
gether   674,  677 

too  remote,  though  accumulation  can  be  stopped,  if 

those  entitled  to  stop  have  not  vested  interests  .     675 
to  pay  debts  and  legacies  to  living  persons,  not  too 

remote 676 

to  convert  property  and  accumulate  income,  not  too 

remote 676  a 

charity  to  which  remote  accumulation  is  condition  prece- 
dent is  void 677 

otherwise  when  charity  is  unconditional    .    .    .     678 
direction  to  accumulate  income  of,  if  too  remote,  in- 
come goes  at  once  in  charity 678 

whether  valid 679, 679  a 

under  Pennsylvania  Statutes 715,  724 

direction  to  accumulate  void  for  remoteness,  not  ren- 
dered good  pro  tanto  by  Thellusson  Act 688 


668  INDEX. 

ACCUMULATION  —  continued.  Section 

statutes  as  to,  in  England,  Thellusson  Act   .     676  b,  686-714 

Pennsylvania      715-725 

Alabama      726 

Indiana 727 

New  York 747-750 

Michigan,  Wisconsin,  and  Minnesota 751 

Illinois 726  a 

in  Scotland     759,  760 

under  deed  executed  before  Thellusson  Act  ....     760 
See  CONFLICT  OF  LAWS;  SPENDTHRIFT  TRUST;  THELLUSSON 

ACT. 
ADVERSE  USE, 

easements  in  United  States  acquired  by,  not  by  prescrip- 
tion   586  a 

cannot  raise  duty  to  pay  money 586  a 

ADVOWSON, 

held  in  trust  to  appoint  clergy  of  particular  opinions, 
whether  charitable  or  inalienable 627 

ALABAMA, 

estates  tail  in      19,  n. 

Statute  Quia  Emptores  in 25 

statute  allowing  leaseholds  for  twenty  years  only    .     210,  742 

as  to  accumulation 726 

changing  Rule  against  Perpetuities 742 

See  CHARITY;  CY  PRES. 
ALIENATION, 

alienable  interests  may  be  too  remote,  Chap.  VII.    300,  312, 

315 
restraints  on,  Rule  against  Perpetuities  not  aimed  directly 

at 2,268-278^,591 

rules  against,  confounded  with  Rule  against  Perpe- 
tuities     2  a,  3,  118  a,  187,  236,  278-278  d,  437  a, 

589-591,  600,  898-909 

statutes  based  on  such  confusion    3,  278  a,  736,  737, 

743,  744,  747-752 
not  allowed,  at  law  or  in  equity,  except  in  separate 

estate  of  married  women 119,  141a-141c 

allowed  in  several  states 119,  n. 

not  allowed  in  equitable  fees 236 

allowed  when  limited  in  time,  in  Kentucky      .    .       121  j 


INDEX.  669 

ALIENATION  —  continued.  Section 

disregarded  if  they  produce  remoteness  .  .  239,  n.,  240 
by  unborn  persons,  whether  to  be  disregarded  432-442 

of  pews 305  (6) 

powers  of  trustee  to  sell  operate  as 489 

options  to  purchase  land  may  be  void  as  ...  330  a,  n. 
postponement  of  enjoyment  operates  as  .  ...  120,  n. 
laid  on  one  having  vested  indefeasible  estate  120-121  j, 

442,  638,  640,  671,  672,  692 

See  ADVOWSON;  CHARITY;  DISCRETIONARY  POWER;  POST- 
PONEMENT OF  ENJOYMENT;  SPENDTHRIFT  TRUST. 

ALLODIAL, 

meaning  of 23,  n. 

AMERICA, 

Rule  against  Perpetuities  has  always  prevailed  in  ...     200 

estates  tail  in 19,  n. 

creation  of,  by  cy  pres  in 661-670 

whether  tenure  in 22,  23 

Statute  Quia  Emptores  in 24-28 

of  Uses  in 67-68  a 

of  Enrolment  in 67,  n. 

statutes  allowing  freeholds  in  futuro  in 67 

on  accumulation  in 715-727 

changing  Rule  against  Perpetuities  in  ....  728-752 
based  on  wrong  theory  of  the  Rule  in  3,  278  a,  736,  737, 

743,  744,  747-752 

possibilities  of  reverter  in 38-42 

future  limitations  of  chattels  in  ...      88-97,  816,  843-852 
gross  term  of  twenty-one  years  allowed  in    .    .    186,  223,  224 

easements  by  deed  poll  in 330  b,  n. 

conditions  in  real  estate  never  held  remote  in  ...     304-311 

in  personal  estate,  quaere 321 

custom  cannot  create  profit  a  prendre  in 584 

as  to  easement,  qucere 585-586  a 

See  CHARITY;  CY  PRES. 
ANIMALS, 

gifts  for  the  support  of 228  a,  905,  906 

ANNUITIES, 

in  Scotch  law      755 

Roman  law 761 

ANTICIPATION,  RESTRAINT  ON.    See  ALIENATION. 


670  INDEX. 

ARKANSAS,  Section 

no  tenure  in 23 

constitutional  provision  on  perpetuities 730 

ATTORNEY  GENERAL, 

necessary  party  to  a  suit  to  carry  out  a  charity  .    .    .  685,  n. 

though  there  are  definite  trustees 685,  n. 

or  definite  cestuis  que  trust 685,  n. 

not  in  sixteenth  century 685,  n. 

nor  before  Commissioners 685,  n. 

nor  between  trustees  for  a  charity  and  a  stranger  685,  n. 

has  control  of  information  to  administer  charity     .    .  685,  n. 
suits  to  administer  charities  in  which  he  has  not  been 

joined 685,  n. 

BARGAIN  AND  SALE, 

can  raise  freehold  in  futuro 56,  68  a,  n. 

not  in  Massachusetts 57 

to  a  person  not  in  esse 61-65 

See  STATUTE  OF  USES. 
BASE  FEE, 

how  it  arises 35,  n. 

not  affected  by  Statute  Quia  Emptores      ......     35,  n. 

See  POSSIBILITY  OF  REVERTER. 

CALIFORNIA, 

constitutional  provision  against  perpetuities 752 

except  charities 752 

statutes  as  to  remoteness  and  accumulation 752 

CHARITY.    Chap.  XVIII. 

determinable  charitable  trusts    .    .    .  41  a,  205,  n.,  327,  603  i 

customary  rights  supported  as  charities 583 

generally  no  definite  cestui  que  trust 590,  603,  680 

but  there  may  be 603,  680-685 

as  for  the  ministers  of  a  church 681 

a  schoolmaster 681 

a  lodge  of  freemasons 681 

inhabitants 682 

school  for  whole  neighborhood 682 

poor  relations 683 

founder's  kin 684 

none,  if  property  alienable  by  present  beneficiaries    .    .     895 


INDEX.  671 

CHARITY  —  continued.  Section 

property  of,  necessarily  inalienable 590 

investment  may  be  changed  by  legislature  or  chan- 
cery     . 590,  n. 

power  in  trustee  to  sell,  not  void 590,  n. 

whether  subject  to  Rule  against  Perpetuities  .    .    .     589-602 

not  necessarily  exempt  from  Rule 591,  599-602 

when  property  is  given  from  a  charity  to  an  individual, 

or  vice  versa,  the  Rule  applies 592-594 

though  no  change  of  trustee 595,  596 

to  another  charity,  the  Rule  held  not  to  apply    597,  598 

correctness  of  this  questionable 599-603  h 

/on  remote  condition,  void 605-606  a 

gift  to  non-existing  corporation  carried  out  cy  pres  and 

not  remote 607,  608 

otherwise,  cy  pres  being  repudiated,  in  New  York, 

formerly,  now  changed 609 

Michigan 610 

Minnesota 610 

Wisconsin,  quaere 610 

Maryland 611 

Alabama,  semble 612 

Tennessee 613 

Indiana,  semble 614 

but  allowed,  though  cy  pres  repudiated,  in  Virginia 

616-318 

West  Virginia 619 

North  Carolina,  semble 620 

Connecticut 621-624 

Iowa 625 

in  Pennsylvania 626,  626  a 

not  affected  by  constitutional  provisions  as  to  perpetui- 
ties    731,752 

See  ACCUMULATION;  ADVOWSON;  ATTORNEY  GENERAL; 
CONFLICT  OF  LAWS;  CY  PRES;  NON-CHARITABLE 
GIFTS;  PEW;  TOMB. 

CHATTEL  PERSONAL, 

conveyance  of,  in  futuro  by  parol  as  gift  held  void    .     77,  96 
quaere,  when  there  is  delivery  to  one   for   a 

present  life  interest 96 

by  deed  or  for  value,  good 77 


672  INDEX. 

CHATTEL   PERSONAL  —  continued.  Section 

may  be  bailed  for  years 78 

can  be  granted  on  condition 78 

future  interest  in 821-852 

no  real  remainder  in      90,  n.,  321 

gift  of,  after  prior  interest,  in  England 78,  829 

inter  vivos  in  America 91-97,  844-847 

void  (except  as  to  slaves)  in  North  Carolina 

92-94,  844 

as  to  reversionary  interest 97 

by  will,  in  England 80-86  a,  826-842,  855 

in  America 88-90  a,  843-852,  855 

gift  of,  after  bequest  for  life,  whether  vested  or  execu- 
tory   86  a,  830-842,  849-852 

future  equitable  interest  in 87 

See  PERSONAL  PROPERTY. 

CHATTEL  REAL.    See  PERSONAL  PROPERTY;  YEARS,  ES- 
TATE FOR. 

CHILD-BEARING, 

women  never  deemed  past  child-bearing  on  question  of 

remoteness 215,  215  a,  376 

otherwise  on  question  of  custody  of  property  .    215  a,  n. 
queer e,  on  question  of  sale  and  purchase    .    .    .    215  a,  n. 

See  GESTATION. 
CHILDREN, 

limitations  to,  not  vesting  at  twenty-one,  bad  in  marriage 

settlements 371, 374 

See  CLASS;    GRANDCHILDREN. 

CIVIL  LAW.     See  FRANCE;  LOUISIANA;  ROMAN  LAW;  SCOT- 
LAND; TEXAS. 

CLASS, 

limitations  to      Chap.  X. 

defined 369,  n. 

remainder  to,  when  vested 110 

after  life  in  being  is  good 377 

certain  limitations  to,  though  vested,  yet  remote  205  a,  972,  n. 
gift  to,  for  life,  all  must  be  born  within  required  limits  232,  n. 
may  be  remote,  though  whole  class  can  pass  the  in- 
terest    268,276,277 


INDEX.  673 

CLASS  —  continued.  Section 

on  remote  contingency  bad,  although  some  members 

in  ease 373,  375,  375  a 

good,  if  one  member  has  reached  required  age  at  tes- 
tator's death 379,  381,  n. 

and  individual,  like  gift  to  a  class 380 

composed  of  children  reaching  twenty-one,  and  the 
children  reaching  twenty-one  of  children  dying 

under  twenty-one,  bad 381-385,  387 

remote  substitutionary,  may  leave  original  gift  good   386, 

388 

if  gifts  are  separable  they  are  dealt  with  separately   355, 

389 

and  if  shares  determined  within  required  limits, 
gift  over  of  the  shares  of  those  members 

in  ease  are  good 389-395  a 

so  modifications  of  the  shares  of  those 

members      390, 441 

of  suffering  grandchildren,  bad 396 

of  issue  or  descendants 397,  398 

power  to  appoint  to 511-513 

appointment  to,  under  power      537-540 

good,  if  class  closed  at  donee's  death     ....  523-523  / 
determined  when  one  member  reaches  required  age    .    .     379 
time  of  determining,  as  affected  by  Rule  against  Per- 
petuities       634-641 

general  and  particular  intent  in  connection  with  gifts  to 

857-893 
See  GRANDCHILDREN;  POSTPONEMENT  OF  ENJOYMENT; 

SERIES. 
CLUB, 

unincorporated,  gift  to 896,  897 

COMMON-LAW  INTERESTS, 

defined 296  o. 

wrong  notion  that  they  are  not  within  Rule  against  Per- 
petuities .  .    .  200  o,  296-298,  298  i,  300,  312,  315,  318,  n., 

319,  321  b,  323 
CONDITION, 

whether  confined  to  uncertain  events 201 

CONDITION,  RIGHT  TO  ENTER  FOR  BREACH  OF, 

what  it  is  12 


674  INDEX. 

CONDITION,  RIGHT  TO  ENTER  FOR  BREACH 

OF  —  continued.  s«ction 

not  affected  by  Statute  Quia  Emptores 30 

in  copyholds 70 

on  assignment  or  underlease  of  term 72 

on  conveyance  of  chattels  personal 78 

on  grant  to  borough  in  favor  of  certain  inhabitants    .    .     583 

not  to  dock  entail      140 

not  vested  till  breach 114 

none  in  equity 327 

cannot  be  found  in  express  limitation  over  to  a  third 

person      250 

attached  to  fee,  practically  obsolete  in  England  282,  n.,  299 
condition  now  construed  as  creating  a  trust  .  .  282,  n. 
for  non-payment  of  rent  giving  right  to  hold  only 

until  paid,  not  remote 303 

gives  in  equity  only  right  to  hold  till  paid    .    .     303 

attached  to  lease,  entry  not  necessary 12,  n. 

is  never  remote 303 

held  strictly 309,  n. 

within  Rule  against  Perpetuities 299-303 

held  otherwise  in  America 304-310 

attached  to  personal  property  is  within  Rule   .    .      321-321  b 

quaere,  in  America      321,  321  a 

in  mortgage,  how  far  subject  to  the  Rule,  see  MORT- 
GAGE, Chap.  XVI. 

creating  equitable  easement,  not  within  Rule  .     282,  305  (8), 

308,  n. 

condition  may  be  good  as  subsequent,  though  not  as  pre- 
cedent; but  not  so  generally 250 

See  PEW;  TOMB. 

CONDITIONAL  FEE.    See  FEE  SIMPLE  CONDITIONAL. 

CONDITIONAL  LIMITATION, 

rulings  in  Illinois,  Georgia,  and  Missouri  as  to  ...  68  a 
common  term  for  shifting  use  and  executory  devise  .  32,  54 
incorporeal  hereditament  transferable  in  futuro  by  .  17,  n. 

in  copyholds 70 

not  a  vested  interest 114 

when  introduced 135-139 

no  question  as  to  remoteness  of,  in  freeholds  till  1664  .  139 
not  at  first  distinguished  from  contingent  remainder  141-147 


INDEX.  675 

CONDITIONAL   LIMITATION  —  continued.  Section 

at  first  held  destructible 142-147 

afterwards  decided  to  be  indestructible 159 

importance  of  this  decision 159 

it  is  disliked  by  the  judges 159,  n. 

first  distinct  expression  that  it  must  take  effect  not  later 

than  a  lifetime 165 

releasable 268 

often  made  alienable 268 

within  Rule  against  Perpetuities 317 

although  alienable 268 

if  too  remote,  cannot  determine  prior  fee;  may,  but  gen- 
erally does  not,  determine  prior  lesser  estate    ....     250 
in  one  alternative,  and  contingent  remainder  in  the  other, 

separable 338-340  c 

taking  effect  during  estate  tail  good  ... 449 

but  bad,  if  it  may  take  effect  after  estate  tail  .    .    .     450 

after  estate  tail,  not  partly  good,  partly  bad 453 

See  EXECUTORY  DEVISE;  SHIFTING  USE. 

CONFLICT  OF  LAWS, 

on  rules  against  remoteness  and  accumulation  .    .    258  a-267 
under  Pennsylvania  statute  against  accumulation  .    .     725 

See  HERITABLE  BONDS. 
CONNECTICUT, 

no  estate  tail  in 19,  n. 

no  tenure  in 23 

statute  changing  Rule  against  Perpetuities,  decisions 

under 739 

now  repealed 739 

See  CHARITY;  CY  PRES. 
CONSENT, 

clause  requiring,  though  causing  remoteness,  cannot  be 

disregarded 440 

of  cestui  que  trust  having  fee,  when  necessary  for  exer- 
cise of  power,  power  not  too  remote 492 

general  power  to  appoint  with,  subject  to  Rule  against 

Perpetuities 477 

judged  as  to  remoteness  from  time  of  creation    .    .     527 

CONSEQUENCE, 

of  limitation  being  too  remote,  on  prior  interests    .     247-250 
on  subsequent  interests 251-257 


676  INDEX. 

CONSEQUENCE  —  continued.  Section 

of  power  being  too  remote 258,  535 

of  appointment  being  too  remote 531-540 

See  ACCUMULATION;  CLASS;  EXECUTORY  TRUST;  MODI- 
FYING CLAUSE;  MORTGAGE;  SEPARABLE  LIMITA- 
TIONS; SERIES;  THELLUSSON  ACT. 

CONSIDERATION, 

recital  of,  conclusive  to  support  deed 65 

See  COVENANT. 
CONSTITUTION, 

provision  of,  as  to  perpetuities  in  Arkansas      730 

Nevada 730 

North  Carolina 730,  731 

Tennessee 730 

Texas 730,  773 

Florida 732 

Vermont 733 

Pennsylvania      733 

California 752 

CONSTRUCTION.    Chap.  XIX. 

Rule  against  Perpetuities  does  not  affect 629-631 

influences  judges  unconsciously 632 

aids  in  determining  ambiguous  expressions  ....     633 

cases  of,  supposed  to  be  affected  by  rule 634-641 

rules  of,  tendency  to  disregard 103,  n. 

See  CY  PRES. 
CONTINGENT  REMAINDER.    See  REMAINDER. 

CONTRACT, 

rent-charge  really  a 273  a,  316 

not  within  Rule  against  Perpetuities  273  a,  329,  330  a-330  c 
otherwise,  if  specifically  enforceable  275,  329,  n.,  330-330 c 

transfers  of,  are  within  Rule 329,  n. 

action  at  law  may  be  brought  upon,  though  obnoxious 

to  Rule  against  Perpetuities 330  a 

of  sale,  not  void,  where  it  gives  an  immediate  right   .   275,  n. 

See  COVENANT. 
CONVERSION, 

in  connection  with  Rule  against  Perpetuities  .    .    .     910-917 
of  realty,  effect  of,  where  different  rules  as  to  remoteness 
prevail 264-267 


INDEX.  677 

CONVERSION  —  continued.  Section 

prevents  application  of  supposed  rule  against  double 

possibilities 295,  n.,  917 

income  of  converted  land,  to  whom  it  goes  under  Thel- 
lusson  Act 702,  n. 

CONVEYANCE, 

operates  according  to  intent  of  parties 65 

COPYHOLD, 

future  interests  in 70 

subject  to  Rule  against  Perpetuities 318 

not  subject  to  Statute  Quia  Emptores 783 

CORPORATION, 

on  dissolution  of,  land  does  not  revert  to  the  grantor,  but 

escheats 44-51  a 

See  CHARITY;  CY  PRES;  SHARE. 

CORPOREAL  HEREDITAMENT.    See  HEREDITAMENTS. 

COVENANT, 

for  renewal,  whether  it  makes  lease  void  for  remote- 
ness   230,  230  a  a,  230  6,  330,  n. 

imposing  present  restriction  not  within  Rule  against 

Perpetuities 280,  330  6 

for  quiet  enjoyment,  whether  limitation  on  breach  of,  is 

within  Rule 417 

to  stand  seised,  in  Massachusetts  can  be  raised  by  pecu- 
niary consideration    57 

pcwers  to  lease  in 64 

running  with  the  land 329 

See  CONTRACT;  EQUITABLE  EASEMENT. 

CROSS-REMAINDER, 

Act  within  Rule  against  Perpetuities 207 

CURTESY, 

on  fee  simple  conditional 14,  n. 

tenure  of  estate  in 42  a 

an  executory  limitation 115  a 

as  affected  by  the  Rule  against  Perpetuities 313  a 

CUSTOM, 

distinguished  from  prescription 573,  574 

can  give  rise  to  easement  in  England    ....    575-578,  580 


678  INDEX. 

CUSTOM  —  continued.  Section 

whether  in  America 585,  586 

not  to  profit  a  prendre 579,  580,  584 

rights  by,  not  always  confined  to  inhabitants 577 

not  within  Rule  against  Perpetuities  in  England    572-583 

supported  as  a  charity      583,  682,  685 

easement  attached  to  land  by,  within  Rule 588 

whether  profit  a  prendre  in  inhabitants  can  arise  from 

grant  by  the  crown 581-583 

See  FISHERS. 
CY  PRES, 

in  charities,  doctrine  of,  not  to  be  confounded  with  pre- 
rogative power 608,  n. 

not  applicable  to  terminable  charitable  trusts      .    .  603  i 
gifts  to  non-existing  corporations  carried  out  by     .     607 

not  recognized  in  New  York 609 

but  this  now  changed 609 

nor  in  Michigan 610 

Minnesota 610 

Maryland 607,  n.,  611 

Alabama 612 

Tennessee 613 

Indiana 614 

Virginia   . 616 

West  Virginia 619 

North  Carolina 620 

Connecticut 214  d,  621-624 

but  this  now  changed 624  a 

Iowa 625 

Wisconsin,  quaere 610 

recognized  in  Pennsylvania      626,  626  a 

giving  estate  tail  to  unborn  life  tenant  by,  when  the  life 
estate  is  followed  by  remainders  to  issue  in 
tail,  or  successive  life  estates  to  issue  .  643-669, 

877-879,  943-944 

so  on  appointment  to  object  of  power,  with 
remainder  to  issue  who  are  not  objects  .    .     644 

applies  to  legal  devises 645,  652 

though  issue  take  in  different  order 649 

not  applied  in  deeds      646 

nor  so  as  to  include  persons  not  devisees    647,  662, 

663,  665-669,  878 


INDEX.  679 

CY   PRES  —  continued.  Section 

nor  to  fees  simple  or  personal  property  647,  661,  663, 

665-669 

nor,  probably,  so  as  to  exclude  devisees  .     648,  878 
nor  when  succession  of  life  estates  is  not  per- 
petual   653 

nor  when  there  are  successive  leaseholds  deter- 

minable  by  death 654 

how  applied  when  some  only  of  the  life  tenants  are 

born 650 

to  successive  life  estates 652-660 

not  to  be  extended 651 

inapplicable  where  estates  tail  abolished  663,  665,  668,  669 
might  have  been  employed  in  Tregonwell  v.  Sydenham  421 

American  cases 661-670 

term  used  loosely 660,  670 

See  CHARITY. 

DEBTS,  PAYMENT  OF, 

trustees  for,  whether  they  take  fee  or  chattel  .    .    .    .   415,  n. 

gifts  for,  whether  too  remote 415^417 

power  to  sell  for,  not  too  remote 486 

direction  to  accumulate  for,  not  too  remote 676 

See  THELLUSSON  ACT. 

DEDICATION, 

possibility  of  reverter  upon     312,  n. 

DE  DONIS,  STATUTE  OF.    See  TAIL,  ESTATE  IN. 
DEED.    See  CONVEYANCE. 
DEFAULT  OF  ISSUE.    See  ISSUE. 

DEFERRED  ENJOYMENT.    See  POSTPONEMENT  OF  EN- 
JOYMENT. 

DELAWARE, 

estate  tail  in 19,  n. 

Statute  Quia  Emptores  in  force  in 26  a 

no  reversionary  interest  after  bequest  for  life  of  a 

chattel,  in 90  a,  852 

DESTRUCTIBLE  INTEREST, 

if  it  can  be  destroyed  at  pleasure  of  one  having  present 
vested  interest,  not  within  Rule  against  Perpetui- 
ties .  203,  313,  443^72,  486-509,  5266,  568,  n. 


680  INDEX. 

DESTRUCTIBLE   INTEREST  —  c&ntinued.  Section 

otherwise,  if  onerous  condition  attached   ....   568,  n. 

direction  to  accumulate,  if  destructible,  not  too  remote      672 

nor  within  Thellusson  Act 692 

DETERMINABLE  FEE, 

done  away  with  by  Statute  Quia  Emptores   31-41  a,  774-788 
See   BASE   FEE;    FEE    SIMPLE    CONDITIONAL;   POSSIBILITY  OP 

REVERTER. 

DEVISE.    See  EXECUTORY  DEVISE;  RESIDUARY  DEVISE. 
DISCRETIONARY  POWER, 

in  trustees,  effect  on  remoteness 232,  n.,  246,  439 

See  SPENDTHRIFT  TRUST. 
DISTRESS, 

right  of,  semble  not  within  Rule  against  Perpetuities    273  a, 

303,  316,  329 
DISTRIBUTION.    See  CLASS. 

DOMICIL.    See  CONFLICT  OF  LAWS;  HERITABLE  BOND. 

DOUBLE  POSSIBILITIES.  See  POSSIBILITY  ON  POSSI- 
BILITY; REMAINDER. 

DOWER, 

on  fee  simple  conditional      14,  n. 

tenure  of  estate  in 42  o 

an  executory  limitation 115  o 

as  affected  by  the  Rule  against  Perpetuities 313  o 

DYING  WITHOUT  ISSUE.    See  ISSUE. 

EASEMENT.  See  ADVERSE  USE;  CUSTOM;  EQUITABLE 
EASEMENT;  ENTRY;  FISHERS;  PROFIT  A  PRENDRE; 
RIGHTS  IN  LAND  OF  OTHERS. 

ELECTION, 

doctrine  of,  as  applied  to  powers 541-561  / 

declared  not  to  apply  when  there  is  appoint- 
ment and  invalid  modification    .    .     541-553 
this  exception  not  sustainable  on  principle  554, 

555 

declared  not  to  apply  when  appointment  is  re- 
mote         556-558 

this  also  questionable 558  a-561  / 

as  applicable  to  questions  of  conversion  .    .    .  267,  n. 


INDEX.  681 

ENROLMENTS,  STATUTE  OF.    See  STATUTE  OF  EN-    Section 

ROLMENTS. 

ENTRY, 

right  to  enter  and  abate  obstruction  to  easement,  not 

within  Rule  against  Perpetuities 281 

See  CONDITION,  RIGHT  TO  ENTER  FOR  BREACH  OF. 

EQUITABLE  EASEMENT, 

rot  within  Rule  against  Perpetuities  280-282,  305  (8),  308,  n., 

3306 
See  COVENANT. 

EQUITABLE  INTEREST, 

may  be  created  in  futuro,  either  freehold 69 

or  leasehold 75 

when  vested 116 

in  fee  cannot  be  made  inalienable 236 

is  not  subject  to  escheat 205,  n. 

when  future,  subject  to  Rule  against  Perpetuities    202,  322- 

328,  411 

not  if  vested 205,  322 

present,  in  fee,  wrongly  held  to  violate  Rule    .    .     235-237  d, 

245  c-246 
treated  as  within  doctrine  of  Whitby  v.  Mitchell  as  to 

remainders  to  issue  of  unborn  persons 325  a 

equitable  right,  if  enforceable  specifically  on  contingency, 

within  Rule 275,  329,  n.,  330 

See  ALIENATION;  CHARITY;  DEBTS,  PAYMENT  OF;  DIS- 
CRETIONARY POWER;  EQUITABLE  EASEMENT;  EXECU- 
TORY TRUST;  POWER;  RESULTING  TRUST;  SPEND- 
THRIFT TRUST;  TAIL,  ESTATE  IN;  TRUSTEE. 

ESCHEAT, 

right  of 17  a 

how  affected  by  Statute  Quia  Emptores 44 

in  land  of  dissolved  corporation 44-51 

vested 115,  205,  n. 

not  within  Rule  against  Perpetuities  .  204,  205,  n.,  316  a 

none  in  equitable  fee 205,  n. 

in  income  released  by  Thellusson  Act    ....     701,  704 

ESTATE  FOR  LIFE.    See  LIFE,  ESTATE  FOR. 
ESTATE  FOR  YEARS.    See  YEARS,  ESTATE  FOR. 


682  INDEX. 

ESTATE    IN  FUTURO.    See  FREEHOLD  IN  FTJTUBO.       Section 
ESTATE  TAIL.    See  TAIL,  ESTATE  IN. 

EXCHANGE, 

obsolete  before  Rule  against  Perpetuities  established    301,  n. 

See  POWER. 
EXECUTOR, 

power  to,  should  run  from  date  of  probate  not  death     .  214  e 

EXECUTORY  DEVISE, 

at  one  time  disallowed  in  Illinois 68  o 

held  not  allowed  in  Missouri 68  a,  n. 

defined;  not  divided  into  shifting  and  springing  .    .   .   54,  919 
estate  which  can  take  effect  as  a  contingent  remainder, 

cannot  take  effect  as  an 338,  n.,  918-930 

but  this  rule  does  not  apply  to  equitable  interests     116,  n. 

after  fee-simple  conditional      14,  n. 

whether  too  remote 455 

contingent,  after  term  for  years,  good 58-60 

in  copyholds 70 

of  term,  good      74,  813-820,  856 

of  chattel  personal,  in  England 80-86  a,  821-842 

in  America 88-90  a,  843-852,  855 

not  a  vested  interest   .      . 114 

when  turned  into  vested  remainder 114,  n. 

of  freehold  under  custom 124 

when  introduced 138 

of  terms,  introduced      148-152 

after  h'fe  interest    .    148,  150-152,  154,  157,  n.,  162-164, 

166,  168,  813-820,  856 
after  failure  of  issue      .    .    .   149,  153-158,  161,  168,  169 

disliked  by  judges      152,  157,  n.,  163 

Rule  against  Perpetuities  first  introduced  in  connec- 
tion with  ....   148,  152-158,  160-164,  166-170,  173 
of  life  estate,  to  successive  generations,  suggested  inva- 
lidity of,  apart  from  Rule  against  Perpetuities    .    947,  n. 
See  CONDITIONAL  LIMITATION;  LAPSE. 

EXECUTORY  INTEREST, 

defined 795-798,800-801 

EXECUTORY  TRUST, 

to  be  executed  so  as  not  to  be  too  remote  418 


INDEX.  683 

EXECUTORY  TRUST  —  continued.  Section 

if  it  can,  in  fact,  be  executed  so  as  not  to  be  too  remote, 

it  is  good 421,  422 

if  main  object  too  remote,  probably  wholly  fails     .    .    .     418 
trust  to  settle  personalty  like  realty  formerly  thought 

executory 354 

not  so  now,  but  change  regretted 365 

what  will  make  executory,  and  when  such,  how  exe- 
cuted     365,  n. 


FAILURE  OF  ISSUE.    See  ISSUE. 

FEE  SIMPLE  CONDITIONAL, 

what  it  is 14 

is  estate  with  special  limitation,  not  on  condition  .    .     14,  n. 

curtesy  and  dower  in 14,  n. 

no  remainder  after 14 

not  devisable 14,  n. 

does  not  merge  in  possibility  of  reverter 14,  n. 

none  in  Hawaii 19,  n. 

executory  devise  after 14,  n. 

whether  too  remote 455 

in  copyholds 70 

See  POSSIBILITY  OF  REVERTER. 

FIDEICOMMISSA, 

in  Roman  law 762 

in  German  law 762,  n. 

prohibited  in  Louisiana 768 

formerly  in  Texas 773 

See  SUBSTITUTION. 
FISHERS, 

rights  of,  to  dry  nets  on  shore,  good  by  custom  ....     577 
not  at  common  law 577,  n. 

FLORIDA, 

constitutional  provision  on  Perpetuities 732 

FOREIGN  LAW, 

provisions  as  to  remoteness  in 753-773 

See  CONFLICT  OF  LAWS. 
FRANCE, 

provisions  as  to  remoteness  in  law  of 763-765 


684  INDEX. 

FRANKALMOIGN,  Section 

lands  in,  held  only  of  donor 20,  47,  48 

lands  could  not  be  granted  in,  after  the  Statute  of  Quia 
Emptores,  except  by  the  King 21 

FREEHOLDS  IN  FUTURO, 

not  allowed  at  common  law 6 

raised  by  Statute  of  Uses 52 

supposed  exceptions 55-65 

legislation  in  America  concerning 67 

whether  they  can  be  created  in  Ohio 68 

in  Illinois 68  a 

See  CONDITIONAL   LIMITATION;    EXECUTORY   DEVISE; 
SHIFTING  USE;  SPRINGING  USE. 

FREEMASONS, 

gift  to  trustees  for  lodge  of,  may  be  charitable    ....     681 

FUTURE  INTERESTS, 

what  are  allowed.    See  TABLE  OF  CONTENTS,  CHAP.  II. 
subject  to  Rule  against  Perpetuities.    See  TABLE  OP 
CONTENTS,  CHAP.  VIII. 

See  RULE  AGAINST  PERPETUITIES. 

GENERAL  AND  PARTICULAR  INTENT, 

in  connection  with  Rule  against  Perpetuities   .    .    .     857-893 

GEORGIA, 

estates  tail  in      19,  n. 

tenure  in 23 

Statute  Quia  Emptores  in 25 

rulings  in,  as  to  shifting  uses 68,  n. 

statute  as  to  remoteness 735 

GESTATION, 

extension  of  Rule  against  Perpetuities  to  cover    171,  173,  174, 

220-222 

periods  allowed 220 

often  two ***»«.     221 

sometimes  three     .....           .,,_.....     222 

See  CHILD-BEABING;' POSTHUMOUS  CHILD. 
GIFT.    &>«  CHATTEL  PERSONAL. 

GRANDCHILDREN, 

9f  living  persons,  devise  to,  as  class,  is  bad  ....    370,  374 


INDEX.  685 

GRANDCHILDREN  —  continued.  Section 

if  confined  to  those  living  at  testator's  death  it  is 

good 378 

so  if  at  testator's  death  one  has  reached  the  required 

age 379 

limitation  to,  in  marriage  settlement,  is  bad 371 

so  appointment  to  unborn,  under  marriage  settlement,  is 

bad 520 

of  testator,  or  of  deceased  person,  devise  to,  good,  if  not 

postponed  beyond  their  majority 370 

if  they  survive  both  parents,  bad 370,  n. 

trust  for  suffering,  bad 395 

See  CLASS;  CHILDREN. 

HARGRAVE, 

his  argument  in  the  Thellusson  Case 190,  n. 

HAWAII, 

no  fee  simple  conditional  or  estate  tail  in 19,  n. 

HEIRLOOMS, 

to  be  settled  with  land  "as  far  as  law  and  equity  will 

permit." 363-367 

HEREDITAMENTS, 

corporeal  and  incorporeal 16,  n. 

HERITABLE  BONDS, 

Scotch,  governed  by  law  of  domicil 264,  n. 

See  CONFLICT  OP  LAWS. 
HIGHWAY, 

when  disused,  reverter  of  fee  in      42,  312,  n. 

public  rights  in,  not  subject  to  Rule  against  Perpetuities    587 

IDAHO, 

statutes  as  to  remoteness  and  accumulation 752 

ILLINOIS, 

whether  tenure  in 23 

Statute  Quia  Emptores  in 25 

when  street  disused,  fee  reverts  in      42,  312,  n. 

has  been  held  in,  that  fee  cannot  be  limited  on  fee     .    .    68  a 
provisions  for  postponement  of  enjoyment  attachable  to 

fees  in 121  c 

statute  as  to  accumulations  in 726  a 

on  estates  tail  in 19,  n. 


686  INDEX. 

IMPLICATION,  Section 

estate  by,  probably  not  raised,  if  too  remote 633 

See  THELLUSSON  ACT. 

INCORPOREAL  HEREDITAMENT.  See  EASEMENT; 
HEREDITAMENTS;  PROFIT  A  PRENDRE;  REMAINDER; 
RENT;  REVERSION;  RIGHTS  IN  LAND  OF  OTHERS. 

INDIANA, 

whether  tenure  in 23 

Statute  Quia  Emptores  in 25 

statute  as  to  accumulations  in 727,  745 

changing  Rule  against  Perpetuities 743-745 

See  CHARITY;  CY  PRES. 
INFANCY, 

extension  of  Rule  against  Perpetuities  to  cover   .    .     171-175 

not  to  be  justified  on  principle 186-188 

actual,  not  taken  into  account  in  judging  questions  of 

remoteness 188,  444,  502,  691 

accumulation  during,  in  connection  with  estates  tail  463-468, 

471 
power  to  sell  during  ...............    495-497,  501,  502,  505 

analogy  of,  applied  wrongly  to  accumulation  by  implica- 
tion under  Thellusson  Act 691 

accumulation  during,  under  Thellusson  Act     .    .    .     698,  699 
under  Pennsylvania  statute 715,  717 

INHABITANTS.    See  CUSTOM. 

INSURANCE, 

policies  of  life,  application  of  Thellusson  Act  to      ...     693 

INTERESSE  TERMINI.    See  YEARS,  ESTATE  FOR. 
INTERPRETATION.    See  CONSTRUCTION. 

IOWA, 

no  estate  tail  in      19,  n. 

fee  simple  conditional  in 19,  n. 

tenure  in     23 

statute  as  to  remoteness 736 

See  CHARITY;  CY  PRES.  , 
IRELAND, 

Thellusson  Act  does  not  extend  to 714 

See  CONFLICT  OF  LAWS. 


INDEX.  687 

ISSUE,  Section 

failure  of,  executory  devise  of  term  after    149, 153-158, 161, 

168,  169 

gifts  over  on 211-213 

of  personal  property,  when  separable  .    .     356-362 
constructions  influenced,  though  unconfessedly, 

by  Rule  against  Perpetuities 632,  n. 

See  SEPARABLE  LIMITATIONS. 

JOINT  TENANTS, 

persons  cannot  be,  if  some  have  vested,  some  contingent, 

interests 380,  n. 

remainder  to  children  of  living  person  as,  for  life,  not  too 

remote 232  a 

JURA  IN  ALIENO  SOLO.  See  RIGHTS  IN  LAND  OF  OTHERS. 

KENTUCKY, 

whether  tenure  in 23 

provision  restraining  alienation  attachable  to  fee  in   .      121  j 
provisions  for  emancipation  in,  held  within  Rule  against 

Perpetuities 228,  n. 

statute  as  to  remoteness 737 

LAPSE, 

effect  of,  in  case  of  executory  devise 788 

LEASEHOLD.    See  YEARS,  ESTATE  FOR. 

LEGACY, 

power  to  sell  to  pay,  not  too  remote 486 

direction  to  accumulate  to  pay,  not  too  remote  ....     676 

on  condition  in  Roman  law 762,  n. 

in  French  law 763 

in  Louisiana 766 

See  EXECUTORY  DEVISE;  RESIDUARY  DEVISE. 
LEGISLATIVE  CHANGES.    See  APPENDIX,  B  AND  C. 

LIFE,  ESTATE  FOR, 

in  terms  for  years  ....  71-71  6,  74-75,  807,  808,  853,  856 
limitations  after  74,  148,  150-152,  154,  157,  n.,  162-164, 

166,  168,  809-820 

in  chattels  personal  in  England  .   .  77-87,  825-842,  854,  855 
in  America  .  88-97,  849-852 


688  INDEX. 

LIFE,  ESTATE  FOR  —  continued.  Section 

present,  no  limitation  of,  too  remote 225-230 

equitable,  may  be  made  inalienable  in  several  states     .      119 

to  unborn  persons,  successively  in  remainder  .    .   191-199,  n. 

good,  if  vesting  within  required  limits  ....     206 

when  construed  to  give  estate  tail.    See  CY  PRES. 

good,  if  beginning  within  required  limits  232,  232  a,  421, 

974 

though  followed  by  remote  estates 232 

wrong  decisions 238-246 

power  to  trustees,  subsisting  during,  bad 500 

to  life  tenant  too  remote .    .     477 

unless  it  be  general  power  to  appoint  by  deed  477 
to  class,  all  must  be  born  within  required  limits     .    .    .   232,  n. 
whether  covenants  for  renewal  of,  cause  remoteness  230,  230  a 
at  discretion  of  trustees,  how  dealt  with  as  to  remote- 
ness   246,  439 

generally  not  determined  by  remote  conditional  limitation  250 

but  sometimes  otherwise 250 

to  living  persons,  held  bad  after  remote  limitations,  but, 

semble,  wrongly 252-257 

powers  in  connection  with  settled 490,  499,  500 

direction  that  tenant  in  fee  shall  hold  only  for  life,  void    656 

in  Scotland 755-758 

in  Louisiana 770-772 

See  CHATTEL  PERSONAL;  PENNSYLVANIA;  PUR  AUTER 
VIE,  ESTATE;  SERIES;  SPENDTHRIFT  TRUST;  THEL- 
LUSSON  ACT;  USUFRUCT;  YEARS,  ESTATE  FOR. 

LIMITATION.  See  CLASS;  CONDITIONAL  LIMITATION;  EX- 
ECUTORY DEVISE;  REMAINDER;  SEPARABLE  LIMITA- 
TIONS; SERIES;  SHIFTING  USE;  SPRINGING  USE. 

LIVES, 

in  being,  after  which  gift  over  is  good,  not  limited  in 

number    ...  163,  166-168,  170,  189,  190,  216-219  b 

must  they  be  human,  qucere 228  a,  905,  906 

limited  by  statute  in  Alabama 742 

Mississippi 746 

New  York 747,  749 

Michigan,  Wisconsin,  and  Minnesota    ....     751 

LOUISIANA, 

provisions  as  to  remoteness  in  law  of 766-772 


INDEX.  689 

MAINE,  Section 

estates  tail  in      19,  n. 

freeholds  in  futuro  in 68 

MANSFIELD,  LORD, 

instances  of  his  erroneous  decisions  in  the  law  of  real 
property 197,  n. 

MARRIAGE  SETTLEMENT, 

limitations  in,  when  too  remote 371,  374 

appointment  under  power  in,  when  too  remote    .    .     520,  522 
on  trusts  of,  really  absolute  appointment  and  settle- 
ment         528-530 

MARRIED  WOMAN, 

restraint  on  anticipation  by,  as  affected  by  the  Rule 
against  Perpetuities 432-441 

MARYLAND, 

estates  tail  in 19,  n. 

no  tenure  in 23 

peculiar  doctrine  in,  that  trust  beginning  within  limit 

may  yet  be  bad      234  a,  245  a-245  I 

local  law  in,  as  to  option  to  tenant  for  years  to  purchase 

fee 230  b,  n. 

idle  statute  as  to  perpetuities 734 

See  CHARITY;  CY  PRES. 

MASSACHUSETTS, 

estates  tail  in 19,  n. 

Statute  Quia  Emptores  in 25 

right  to  enter  for  breach  of  condition,  held  devisable  in  12,  n. 
erroneous  notion  in,  that  bargain  and  sale  cannot  raise 

freehold  in  futuro 57 

that  covenant  to  stand  seised  can  be  supported  by 

pecuniary  consideration 57 

of  difference  in   vesting  of  realty  and  personalty, 

exploded      117,  n. 

whether  executory  bequest  of  chattel  personal,  gives 

legal  interest  in 89 

provisions  for  postponement  of  enjoyment  allowed  to 
be  attached  to  fees  in,  and  effect  of  Rule  against 
Perpetuities  on  them 121  c-121  h 

MICHIGAN, 

whether  tenure  in  .  23 


690  INDEX. 

MICHIGAN  —  continued.  s«ction 

Statute  Quia  Emptores  in 25 

statutes  as  to  remoteness  and  accumulation 751 

See  CHARITY;  CY  PRES. 

MINISTER, 

of  church,  gift  to,  may  be  charitable 681 

MINNESOTA, 

no  tenure  in 23 

statutes  as  to  remoteness  and  accumulation    .    .    .     751,  916 
See  CHARITY;  CY  PRES. 

MINORITY.    See  INFANCY. 

MISSISSIPPI, 

estate  tail  in 19,  n. 

now  prohibited  by  statute 746 

Statute  Quia  Emptores  in 25 

statute  changing  Rule  against  Perpetuities 746 

MISSOURI, 

conditional  limitations  declared  invalid  in 68,  n. 

MODIFYING  CLAUSE, 

disregarded,  when  it  would  cause  remoteness  in  a  will, 

Chap.  XIII.  233,  880 

whether  in  a  deed 423 

but  there  must  be  an  absolute  gift 431,  881 

if  attached  to  separable  gifts,  may  be  good  in  some 

though  disregarded  in  others 441 

if  outside  of  power 423,  n. 

invalid,  whether  it  raises  an  election      541-555 

requiring  consent  cannot  be  disregarded 440 

how  discretionary  power  in  trustees  should  be  dealt  with  246, 

439 
See  ALIENATION. 

MONUMENT.    See  TOMB. 

MORTGAGE, 

Rule  against  Perpetuities,  how  far  it  applies  to  rights  at 

law  under 562,  563 

in  equity  under  . .   .    .    , 564-570  a 

to  rent  to  arise  on  foreclosure  of 271-273  a 

consequences  of  holding  right  under,  too  remote     ...     571 


INDEX.  691 

NAME  AND  ARMS  CLAUSE,  Section 

when  attached  to  estate  tail,  good 449 

to  fee  simple,  bad 449,  n.,  450 

NEVADA, 

constitutional  provision  on  perpetuities  in 729 

NEW  HAMPSHIRE, 

easement  can  be  created  by  custom  in 585,  586 

doctrine  of  general  and  particular  intent  in  ....     857-893 

NEW  JERSEY, 

tenure  in      23 

Statute  Quia  Emptores  in 25 

rights  cannot  be  created  by  custom  in 585,  586 

NEW  YORK, 

no  tenure  in" 23 

Statute  Quid  Emptores  in 24,  n. 

statutory  definition  of  vested  and  contingent  remainders 

in 107,  108,  n. 

statutes  as  to  remoteness  and  accumulation     .    .    .     747-750 

based  on  erroneous  theory 3,  748 

arbitrary  in  character 749 

have  caused  enormous  litigation 750,  871 

See  CHARITY;  CONFLICT  OF  LAWS;  CT  PBES. 

NON-CHARITABLE  GIFTS, 

to  indefinite  persons      894-909  a 

NORTH  CAROLINA, 

estates  tail  in      19,  n. 

Statute  Quia  Emptores  in 25 

future  limitations  of  chattels  inter  vivos,  not  good  in, 

except  of  slaves      92-94,  844 

constitutional  provision  on  perpetuities 730,  731 

said  to  refer  to  estates  tail 731 

not  to  charities 731 

See  CHARITY;  CY  PRES. 

NORTH  DAKOTA, 

statutes  as  to  remoteness  and  accumulation  in    ....     752 

NORTHWEST  TERRITORY, 

whether  tenure  in  .  , 23 


692  INDEX. 

OHIO,  Section 

whether  tenure  in 23 

Statute  of  Uses  not  in  force  in 68 

whether  freeholds  in  futuro  can  be  created  by  deed  in    .  68 
statute  changing  Rule  against  Perpetuities,  decisions 

under 740 

ONTARIO, 

Thellusson  Act  in  force  in 714 

OREGON, 

no  estate  tail  in 19,  n. 

PENNSYLVANIA, 

whether  tenure  in 23,  26 

Statute  Quia  Emptores  not  in  force  in 26 

possibilities  of  reverter  in 38 

thought  assignable 13,  n. 

charitable  gifts  to  corporations  not  in  esse 626 

statutes  as  to  accumulation 715-725 

during  life  estates 717,  719-722  d 

how  they  affect  spendthrift  trusts 720-722  d 

former  constitutional  provision  as  to  perpetuities   .    .    .     733 

See  CHARITY;  CY  PRES. 
PERPETUITY, 

meaning  of      140-141  / 

as  meaning  "an  indestructible  interest"  140-141  c,  152,  156- 

159,  236,  590,  898,  934 
meaning,  as  used  in  "Rule  against  Perpetuities"  is  "a 

remote  interest"     .    .    .    140,  141  d-141  /,  157,  236,  591 
confusion  of  the  meanings    .  2-3,  118  a,  187,  236,  278-278  d, 

589-591,  600,  898-909 

statutes  based  on  this  confusion    3,  278  a,  736,  737,  743, 

744,  747-752 
See  ALIENATION;  RULE  AGAINST  PERPETUITIES. 

PERSONAL  PROPERTY, 

future  estates  in 71-97,  789-856 

Statute  of  Uses  does  not  apply  to 79 

no  true  remainder  of 321, 971 

interest  in,  when  vested 117-1176 

how  it  goes  when  owner  dies  intestate  and  without  kin  205,  n. 

Rule  against  Perpetuities  applies  to  interests  in  ....     202 

if  not  vested 319,  320 


INDEX.  693 

PERSONAL   PROPERTY  —  continued.  Section 

otherwise,  if  vested 205 

to  conditions  attached  to  interests  in 321 

quaere,  in  America 321 

to  equitable  interests  in 326 

gifts  of,  on  failure  of  issue,  when  separable  ....     356-362 
settled  like  realty,  "as  far  as  law  and  equity  will  per- 
mit"          363-367 

cy  pres  not  applicable  to 647 

absolute  interest  in,  when  given  by  words  giving  estate 

tail  in  realty 647,  n. 

gifts  of,  how  far  affected  by  Rule  in  Shelley's  Case    .   647,  n. 

See  CHATTEL  PERSONAL;  YEARS,  ESTATE  FOR. 
PEW, 

conveyance  of,  whether  within  Rule  against  Perpetui- 
ties    305  (6) 

PLEDGES, 

how  far  within  the  Rule  against  Perpetuities 571  a 

POOR  RELATIONS, 

gift  to,  if  continuing,  charitable 683 

not  confined  to  next  of  kin 683,  n. 

those  taking  must  be  poor 683,  n. 

attorney  general  must  be  party  to  suit .    .    .  685,  n. 

if  not  continuing,  not  a  charity 683,  n. 

confined  to  next  of  kin 683,  n. 

they  must  be  poor,  semble 683,  n. 

POSSIBILITY  OF  REVERTER, 

what  it  is 13 

not  alienable,  but  releasable 14 

thought  assignable  in  Pennsylvania 13,  n. 

fee  simple  conditional  does  not  merge  in 14,  n. 

done  away  with  by  Statute  Quia  Emptores 31-42 

in  America 38-42 

not  in  Pennsylvania 38 

nor  South  Carolina 38 

in  incorporeal  hereditament 31,  n.,  33  (11) 

after  a  terminable  gift  for  a  charity  .    .   40  (2  a),  40  a,  41  a 

in  disused  highway 42,  312,  n. 

none  in  equity 327,  327  a 

Rule  against  Perpetuities  does  not  apply  to    41,  41  o,  312, 

313,  455 


694  INDEX. 

POSSIBILITY  OF  REVERTER  —  continued.  Section 

statutory,  after  dedication 312 

....      See  FEE  SIMPLE  CONDITIONAL. 

POSSIBILITY  ON  POSSIBILITY, 

invalidity  df  gift  on,  conceit  of  Popham,  C.  J 125 

without  support  in  authority 126-132,  191 

Lord  Coke  admits  unsound 133 

mentioned  .    .  \    .    .    .    .   154,  155,  162,  933,  938,  945 

denied  .    .    .    . 133,  n.,  169,  191 

spoken  of  by  Lord  Mansfield  .......  133,  n.,  197 

how  exploded 133,  n.,  933 

supposed   origin   of   invalidity   of   successive   life 

remainders 133,  n. 

first  suggested  in  the  year  1765 197 

supposition  is  erroneous 287-290,  933 

See  REMAINDER. 

POSTHUMOUS  CHILD, 

gift  to,  after  life  estate,  formerly  held  conditional  limita- 
tion, but  now  a  remainder 173,  n. 

See  GESTATION. 

POSTPONEMENT  OF  ENJOYMENT, 

provision  for,  in  case  of  one  having  indefeasible  vested 
interest,  may  be  disregarded,  and  therefore  not 

too  remote 120,  121,  442 

question,-  however  when  the  gift  is  to  a  class  121  a,  121  b, 

638-639  6 

is  a  restraint  on  alienation 120,  n. 

allowed  in  Massachusetts  (and  semble,  Illinois)  to  be 
attached  to  a  fee,  and  the  effect  on  it  of  Rule  against 

Perpetuities 121  c-121  ii 

allowed  when  for  the  benefit  of  third  persons     .    .  442  a,  639 

or  to  increase  a  class 639 

in  form,  of  direction  to  accumulate 671,  672,  692 

in  .case  of  a  charity 679 

See  ALIENATION. 
POWER, 

remainder  after,  vested 112,  112  a 

appointment  under,  to  objects  after  appointment  to  non- 
objects     255,  256 

too  remote,  does  not  affect  limitations  in  default  of  ap- 
pointment   258 


INDEX.  695 

POWER  —  continued.  Section 

modifying  clause  outside  of,  disregarded 423,  n. 

how  affected  by  Rule  against  Perpetuities.    Chap.  XV. 

App.  L. 

is  not  properly  said  to  be  too  remote,  but  the  estate  or  in- 
terest appointed  by  it 474  a,  958-960 

exercisable  at  remote  period,  void  altogether  474  a-509,  959 

contrary  notion 481 

origin  of 482 

incorrect 483^85 

exercise  of,  a  condition  precedent  to  estate  arising  under 

appointment 474  a,  474  b,  951,  958-960 

good,  if  contingency  for  appointment  must  happen  or 

donee  die  within  required  limits     .    .  474  6,  476,  476  b,  960 
generally  to  be  exercised  after  contingency  for  appoint- 
ment has  happened 476 

bad,  if  conditioned  upon  a  contingency  upon  which  a 

direct  limitation  would  be  too  remote 476  a 

good,  if  appointed  estates  must  vest  within  required 

limits 476  6 

good,  if  to  be  exercised  within  reasonable  time,  which  is 

less  than  twenty-one  years 478,  486,  491 

to  unborn  life  tenant  remote 477,  957 

unless  absolute  general,  to  appoint  by  deed  .    .    477,  957 
subject  to  same  rule  with  regard  to  separableness  as 

direct  limitation 479,  480 

to  trustees  to  sell  and  trusts  to  sell  for  payment  of 

debts,  not  too  remote 414  a,  486 

to  sell,  exchange,  and  lease,  not  too  remote  487,  590,  n. 
false  reasons,  merely  change  of  title  .    .    .     488 

favors  alienation 489 

really  hinders  alienation  ....     489 

true  reason,  destructibility  of  power  .    .    .     490 

at  first  doubted,  now  well  settled    495-497 

in  settlements  in  tail 498 

for  life  and  in  fee 499 

bad  if  to  continue  after  end  of  trust 493 

though  destructible  by  tenant  in  tail .     494 
good  if  to  be  exercised  within  reasonable  tune, 

which  is  less  than  twenty-one  years  ....     491 
good    if    exercisable    only    with    consent    of 
owner  .  492 


696  INDEX. 

POWER  —  continued.  Section 

whether  ending  when  cestui  que  trust  can  call 

for  a  conveyance 490,  n. 

not  probably  intended  to  continue  after  end  of 

trust 493 

bad,  if  continuing  during  life  estates  to  unborn 

persons 500,  509  b,  509  i,  973,  n. 

to  sell  and  exchange,  usually  expressly  confined 

within  required  limits 487 

to  lease  usually  not  expressly  confined  within  re- 
quired limits 487,  n.,  508 

to  cut  timber      501-504 

to  improve  property 505 

to  appoint  new  trustees,  not  too  remote 509 

summary  of  law  as  to 506,  507 

recent  cases 509  a-509  r 

not  bad  because  capable  of  bad  use 510,  512 

when  remote,  property  appointed  goes  in  default  of  ap- 
pointment    258,  535,  540  a 

general,  property  appointed  under,  on  trusts  which  do 
not  take  effect,  goes  as  part  of  the  donee's  own  estate  540  a 
to  appoint  by  deed,  equivalent  to  ownership   .     477,  524, 

948-969 

otherwise,  if  consent  necessary 527 

to  appoint  by  will,  not  equivalent  to  ownership  526-526  c, 

948-969 

in  trust,  without  cestuis,  invalid 909  a 

appointment  under,  remoteness  judged  from  creation  of 

power 514-530  d,  950,  963-969 

otherwise  with  general  power  to  appoint  by  deed     .    477, 

524,  950 

not  if  consent  necessary 527 

but  not  with  special  power  to  appoint  by  deed  525, 

953 
nor,  semble,  with  general  power  to  appoint 

by  will 526-526  c,  948-969 

present,  if  donee  living  at  creation  of  power,  good  .     516 

erroneous  view  of  Mr.  Lewis 517-519  a 

of  the  Supreme  Court  of  Pennsylvania  523-523  b 
meaning  of,  as  distinguished  from  validity;  mistaken 
idea  that  appointment  is  to  be  construed  as  if 
written  into  original  instrument  517-519  a,  523-523  6 


INDEX.  697 

POWER  —  contimted.  Section 

in  marriage  settlement     .    .    .  520,  522,  528-530  d,  957 

consequences  of  remoteness  of 531-536 

when  gift  is  to  class 537-540 

when  remote,  property  appointed  goes  under 

residuary  appointment,  if  personalty  533, 

540  a 

if  realty,  under  the  Wills  Act  ....     533 
otherwise,  semble,  before  Wills  Act    533 
if  no  residuary  appointment,  goes  in  de- 
fault of  appointment 534,  540  a 

not  bad  because  followed  by  bad  appointment  .    .     531 

validity  of,  after  remote  appointment 532 

See  DISCRETIONARY  POWER;  ELECTION;  EXECUTOR. 

PRESCRIPTION, 

distinguished  from  custom 573,  574 

from  adverse  use 586  a 

PRIOR  INTEREST, 

effect  on,  of  remote  limitations 247-250 

PROFIT  A  PRENDRE, 

cannot  arise  from  custom  in  England 579,  580 

nor  in  America 584 

whether  inhabitants  can  acquire,  by  grant  from  the 

crown 581-583 

See  RIGHTS  IN  LAND  OF  OTHERS. 

PUBLIC  RIGHTS, 

in  land,  not  subject  to  Rule  against  Perpetuities    .    .    .     587 

PUR  AUTER  VIE,  ESTATE, 

present,  no  limitation  of,  too  remote 225-229 

though  renewable 230 

barring  of,  remainder  in,  by  quasi  tenant  in  tail .    .    .   227,  n. 
doubtful  whether  cestui  que  vie  in,  can  be  a  person  not  in 

esse 227,  n. 

income  of  equitable,  goes  to  executor 702,  n. 

QUALIFIED  FEE.  See  BASE  FEE;  DETERMINABLE 
FEE;  FEE  SIMPLE  CONDITIONAL;  POSSIBILITY  OF 
REVERTER. 

QUALIFYING  CLAUSE.    See  MODIFYING  CLAUSE. 

QUIA  EMPTORES.    See  STATUTE  QUIA  EMPTORES. 


698  INDEX. 

QUIET  ENJOYMENT,  Section 

limitation  on  breach  of  covenant  for,  whether  too  remote    417 

REASONABLE  TIME, 

power  to  be  exercised  within,  if  less  than  twenty-one 

years,  not  too  remote 478,  486,  491 

for  incorporating  charity 617,^618,  620,  623 

RELATIONS.    See  POOR  RELATIONS. 

REMAINDER, 

defined 8,  918 

none  after  fee  simple  conditional 14,  455 

existing,  not  transferable  in  futuro  at  common  law     .    .       17 
otherwise  under  Statutes  of  Uses  and  Wills      .    .      17,  n. 

Statute  Quia  Emptores,  effect  on 29 

limited  by  use  or  devise 54 

in  copyholds 70 

after  quasi  fee  tail  in  estate  pur  auter  me,  how  far  bar- 

rable 227,  n. 

none  in  equity 324 

consequences 116,   n.,   325 

after  estate  tail  good 447 

vested,  defined 9,  970 

peculiar  to  the  English  law  of  real  estate  .  .  100,  n.,  971 
and  contingent,  distinction  between  .  .  100-112  a,  799 
when  remainder  to  a  class  is  .  .  110,  110  a,  205  a,  205  b 

remainder  after  estate  tail  is Ill 

after  power  is 112,  112  a 

after  estate  for  years  is .8,  209,  210 

though  term  may  have  contingent  termina- 
tion   209,  210 

whether  residuary  devise  is      113a 

executory  devise  turned  into 114,  n. 

not  within  Rule  against  Perpetuities    .    .  205-210,  283, 

972-974 

except  in  case  of  gift  to  classes  205  a,  205  b,  972,  n. 
though  particular  estate  may  have  contingent 

termination ,»•;••    •    •     209'  21° 

cross-remainders  are 207 

not  within  Rule  against  Perpetuities     ....     207 

cannot  be,  after  contingent  remainder  in  fee  simple    113  6 

contingent,  defined 9 


INDEX.  699 

BEMAINDER  —  contimied.  Section 

only  a  possibility  of  an  estate     .    100,  n.,  101,  n.,  113  6 

when  it  must  vest 10 

not  allowed  originally  at  common  law  .  .  10,  134,  296 
seldom  used  till  Queen  Mary's  time  (1553)  ....  134 
perhaps  not  at  first  allowed  to  an  uncertain  person  134,  n. 

till  it  vests,  fee  is  in  feoff  or      11,  n. 

contingent  use  after  term  for  years,  not  a     ...     58-60 

and  vested,  distinction  between 100-112  a 

easy  destructibility  of,  prevented  objection  of  re- 
moteness being  felt 134,  192,  285,  296 

no  reason  for  taking  it  out  of  Rule  against  Per- 
petuities   285 

by  way  of  use,  held  destructible 141  a-141  e 

now  commonly,  by  statute,  indestructible    ....     286 
at  first  not  distinguished  from  conditional  limita- 
tion       141-147 

not  destroyed  by  a  lease 141,  n.,  146 

to  issue  of  unborn  persons,  invalidity  of,  true  doc- 
trine  191,  291-294  a 

originally  allowed 132,  132  a,  191 

invalidity  of,  result  of  Rule  against  Perpetui- 
ties, not  independent  rule  .    .   191-199,  287- 

298  h,  931-947 
first  suggestion  that  it  was  independent 

rule,  in  the  year  1759    .    .    195,  196,  289 
that  it  was  based  on  the  invalidity  of 
a  possibility  on  a  possibility  197,  288,  933 

trustees  to  preserve,  when  first  used 192,  n. 

within  Rule  against  Perpetuities 284-298  i 

double  or  successive,  supposed  rule  against  .    .    .  295,  n., 

298  h  h,  917,  947,  n. 
in  one  alternative,  and  conditional  limitation  in 

another,  separable 338-340  c 

after  life  in  being  is  good,  although  to  a  class    .    .     377 

after  estate  tail  is  good 447 

(so  called)  after  equitable  estate  for  life,  may  be 

too  remote 325 

treated  as  within  doctrine  as  to  legal  re- 
mainders to  issue  of  unborn  persons      325  a 
after  equitable  estate  tail  may  be   too   re- 
mote .  451 


700  INDEX. 

REMAINDER  —  continued.  Section 

after  equitable  interest  in  personalty  may  be 

too  remote 326 

estate  which  can  take  effect  as,  cannot  take  effect 

as  an  executory  devise     ....  338,  n.,  918-930 
but   this   rule   does    not   apply   to    equitable 

interests 116,  n. 

See  POSSIBILITY  ON  POSSIBILITY;  POSTHUMOUS  CHILD; 

VESTED  INTEREST. 
REMEDY, 

matter  of,  not  within  Rule  against  Perpetuities     273  a,  281, 

303,  316,  565,  569 

mortgagee's  right,  how  far  a  matter  of 565,  569 

"  tfcess,  a  matter  of 273  a,  303,  316 

.to  abate  obstruction  to  easement,  a  matter  of  .    .     281 
to  enter  and  hold  till  arrears  of  rent  paid,  a  matter  of    303 

RENEWAL, 

covenant  for,  whether  it  renders  a  lease  bad  for  remote- 
ness        230-230  b 

RENT, 

can  be  created  in  futuro 16 

cannot  be  transferred  in  futuro  at  common  law  ....       17 
otherwise  under  the  Statutes  of  Uses  and  Wills  .     17,  n. 

determinable  on  contingency 17 

not  subject  of  tenure 43 

beginning  in  futuro,  not  a  vested  interest 114 

could  be  limited  to  unborn  persons 133 

if  to  begin  in  futuro,  whether  within  Rule  against  Perpe- 
tuities     271-273  a,  314-316 

a  rent-charge  seems  to  be  a  contract  right  ....  273  a,  316 
See  CONDITION,  RIGHT  TO   ENTER  FOR  BREACH  OF; 
RIGHTS  IN  LAND  OF  OTHERS. 

RESIDUARY  DEVISE, 

whether  a  remainder  or  a  grant  of  reversion     ....     113  a 

is  specific 113  a,  n. 

real  estate  remotely  given  sometimes  passes  under     .  248,  n. 
See  POWER. 

RESIDUARY  LEGACY, 

personal  property  remotely  given  passes  under    .    .    .   248,  n. 
See  POWER. 


INDEX.  701 

RESTRAINT  ON  ALIENATION.    See  ALIENATION.       section 

RESULTING  TRUST, 

after  determinable  charitable  trusts  .  .  41  a,  205,  n.,  603  i 
whether  there  is,  if  cestui  que  trust  dies  without  heirs  205,  n. 
not  within  Rule  against  Perpetuities  .  .  .  327,  327  a,  603  i 
if  trust  is  too  remote,  there  is  a 414 

REVERSION, 

defined 11 

not  transferable  in  futuro  at  common  law 17 

otherwise  under  Statutes  of  Uses  and  Wills      .    .    .  17,  n. 

not  affected  by  Statute  Quia  Emptores      29 

in  copyholds 70 

after  gift  of  chattel  real  for  life 819,  820 

after  gift  of  chattel  personal  for  life  .    .   .   .  90  a,  97,  842,  852 

is  vested  interest 113-113  b 

whether  residuary  devise  is  grant  of 113  a 

not  within  Rule  against  Perpetuities 205,  283 

grant  of,  after  estate  tail,  may  be  too  remote 452 

See  RESULTING  TRUST. 

REVERTER.    See    CONDITION,    RIGHT    TO    ENTER    FOR 
BREACH  OF;  POSSIBILITY  OF  REVERTER. 

RHODE  ISLAND, 

estates  tail  in 19,  n. 

RIGHTS  IN  LAND  OF  OTHERS, 

can  be  created  in  futuro 16 

cannot  be  transferred  in  futuro  at  common  law  ....       17 
otherwise  under  the  Statutes  of  Uses  and  Wills     .  17,  n. 

determinable  on  contingency 17,  31,  n. 

not  subject  of  tenure 43 

beginning  in  futuro,  not  vested  interests 114 

could  be  limited  to  unborn  persons 133 

if  present,  not  within  Rule  against  Perpetuities  279-282,  330  b 
if  to  begin  in  futuro,  are  within  Rule  .  .  .  279,  n.,  314-316 

may  terminate  at  distant  time 279 

See  CUSTOM;  ENTRY;  EQUITABLE  EASEMENT;  FISHERS; 
PROFIT  A  PRENDRE;  RENT. 

ROMAN  LAW, 

provisions  as  to  remoteness  in     .    .    , 761,  762 

RULE  AGAINST  PERPETUITIES, 

stated 201 

really  a  rule  against  remoteness  .    .  2-3,  268-278  d,  591,  898 


702  INDEX. 

RULE  AGAINST  PERPETUITIES  —  continued.  Section 

true  object  of 268,  603  a 

justification  for 268,  603  a 

substantially  only  check  on  creation  of  future  interests  4,  98 
not  aimed  at  restraints  on  or  suspension  of  alienation  2,  268- 

278  d,  437  a,  437  b,  591 

but  often  confounded  with  rules  against  them     .    3,  236, 

245  c-245  /,  269,  278-278  d,  437  a,  437  6, 

589-591,  600,  898-909 

statutes  based  on  this  confusion  3,  278  a,  736,  737, 

743,  744,  747-752 

practical  rule,  regards  substance  and  not  form  203,  230,  443, 

472,  477,  524,  526  b,  950 
how  far  applicable  to  provisions  postponing  enjoyment 

of  indefeasible  estates  .  120-121  b,  442,  638-641, 

671,  672 

in  the  case  of  a  charity 679 

to  clauses  against  anticipation 432-439 

applies  when  such  provisions  are  valid    121  c-121  .; 
does  not  apply  to  interests  destructible  by  one  having 

present  vested  interest  .  203,  313,  443-472,  486- 

509,  526  b,  568,  n. 

except  in  certain  gifts  to  classes 205  a 

nor  to  right  of  escheat 204,  205,  n.,  316  a 

nor  to  vested  interests  201,  205-210,  283,  320,  322,  476  b, 

970-974 

except  in  gifts  to  classes  .    .  205  a,  205  6, 972,  n. 
though  preceded  by  remote  limitations     .    .    .     251 
though  prior  interest  is  determinable  on  a  con- 
tingency   209 

nor  to  limitations  of  estate  for  life,  or  for  not  more 

than  twenty-one  years 225-230 

nor  to  provisions  for  emancipation  in  Virginia    .    228,  n. 

otherwise  in  Kentucky 228,  n. 

nor  to  interests  beginning  within  proper  limits    232-246 
cases  holding  otherwise  as  to  present  equitable 

fees 235-237  d 

as  to  present  life  interests 238-246 

cases  holding  otherwise  in  Maryland  .   .   .     234  o, 

245  c-245  I 

though  such  interests  might  sometimes  be  open 
to  objection  in  ideal  system  of  law    ....     974 


INDEX.  703 

RULE  AGAINST  PERPETUITIES  —  continued.  Section 

nor  to  agreements  for  sale 275,  n. 

nor  to  present  gifts  to  indefinite  persons  for  non- 
charitable  purposes 898-909 

nor  to  matters  of  remedy   273  a,  281,  303,  316,  565,  569 

nor  to  distress 273  a,  303,  316 

nor  to  contracts 273  a,  329,  330  6-330  c 

nor  to  present  easements,  rents,  &c 279 

though  terminable  on  distant  contingency  .  .  279 
nor  to  easements  attached  to  land  by  custom  .  .  .  588 
nor  to  equitable  easements  .  .  .  280-282,305  (8),  308,  n., 

3306 
nor  to  right  to  abate  obstruction  to  easement     .    .     281 

nor  to  reversions 283 

nor  to  vested  remainders      .    .    .    205-210,  283,  972-974 
except  in  gifts  to  classes  .    .    .    205  a,  205  6,  972,  n. 
though  particular  estate  may  determine  on  con- 
tingency   209 

but  might  conceivably  be  otherwise  in  ideal 

system  of  law 970-974 

nor  in  America  to  conditions 304-310 

nor  to  possibilities  of  reverter      .  41,  41  a,  312,  313,  455 

nor  to  vested  equitable  interests 322 

nor  to  resulting  trusts 327  a 

nor  to  customary  rights  in  England 572-583 

in  America,  quaere 584-586 

nor  to  public  rights 587 

applies  to  what  interests.    Chap.  VIII.     See  TABLE  OF 

CONTENTS. 

to  common-law  interests  as  well  as  to  those  under 
Statutes  of  Uses  and  Wills  200  a,  296-298,  298  i,  300, 

312,  315,  318,  n.,  319,  323 

to  both  legal  and  equitable  interests      202 

to  both  realty  and  personalty 202 

to  interests  in  changeable  funds      202  a 

to  options  of  lessee  to  purchase  fee 230  b 

to  interests,  though  alienable.    Chap.  VII.,  300,  312,  315 
to  equitable  rights,  if  enforceable  specifically  275,  329,  n., 

330,  330  6-330  c 

to  future  easements,  rents,  &c 279,  n.,  314-316 

to  contingent  remainders 284-298  i 

to  conditions  on  conveyances  of  land  in  England  299-303 


704  INDEX. 

RULE  AGAINST  PERPETUITIES  —  continued.  Section 

otherwise  in  America 304-311 

on  conveyances  of  personalty  in  England     .    .     321 

in  America,  quaere 321 

to  conditional  limitations 317 

to  limitations  of  copyholds 318 

to  interests  in  personal  property,  when  not  vested  319-321 
to  equitable  interests  in  property,  when  not  vested     323, 

411,  413 

whether  it  applies  to  estates  for  life  or  years  with  cove- 
nants of  renewal 230-230  6 

to  rents  arising  infuturo 271-273  a,  314-316 

to  pews 305  (6) 

to  charities      589-603 

as  affecting  separable  interests Chap.  IX. 

limitations  to  classes Chap.  X.,  App.  G 

to  series Chap.  XI. 

trusts Chap.  XII. 

modifying  clauses Chap.  XIII. 

limitations  after  estates  tail Chap.  XIV. 

powers Chap.  XV.,  App.  L. 

mortgages Chap.  XVI. 

customary  rights Chap.  XVII. 

charitable  trusts Chap.  XVIII. 

construction Chap.  XIX. 

accumulation      Chap.  XX. 

curtesy 313  a 

dower 313  a 

estates  for  years  commencing  in  futuro     ....  320,  n. 

covenants  running  with  the  land 329 

origin  and  history  of.    Chap.  V.  See  TABLE  OF  CONTENTS. 
requires  that  condition  precedent  must  happen  within 

prescribed  limits 214-215  a 

allows  any  number  of  lives 216-219  b 

periods  of  gestation 220-222 

gross  period  of  twenty-one  years 223,  224 

runs  from  testator's  death,  not  date  of  will 231 

whether  it  affects  clauses  against  anticipation     .    .     432-439 
does  not  affect  termination  of  estates   232-246,  250,  279,  595, 

974 

nor  construction 629-642 

exception,  cy  pres  doctrine 643-670,  944 


INDEX.  705 

RULE  AGAINST  PERPETUITIES  —  continued.  Sectipn 

not  affected  by  infancy 444 

trusts  should  be  executed  so  as  not  to  violate 418 

general  and  particular  intent  in  connection  with  .    .     857-893 
real  exceptions  from  the  rule, 

condition  attached  to  real  estate,  in  America  .     304-311 

not  in  England 299-303 

to  personal  estate,  in  America,  quaere     ....     321 

easement  by  custom  in  England 572-583 

in  America,  quaere 584-586 

power  of  sale  under  mortgage,  quaere     ....     565-570 

charity  after  a  charity 597,  598 

questionable  on  principle 599-603  k 

covenants  for  renewal  in  a  lease 230-230  b 

power  of  trustees  to  sell  and  lease  at  one  time  supposed 

an  exception 487-489 

true  view  concerning 490-499 

effect  of  limitation  violating,  on  prior  interests    .    .     247-250 

on  subsequent  interests 251-258 

conflict  of  laws  concerning 258  a-267 

effect  of  power  or  appointment  violating 531-540  a 

not  changed  by  statute  making  future  estates  alienable    269 

in  America,  has  always  prevailed 200 

changed  by  legislation.    See  Appendix  C. 

constitutional  provisions 730-733 

by  statute  in  Maryland 734 

Georgia 735 

Iowa 736 

Kentucky 737 

Connecticut 739 

Ohio 740 

Alabama 742 

Indiana    .    .    ._^  „- 743,  745 

Mississippi 746 

New  York 747-750 

Michigan,  Wisconsin,  and  Minnesota    .    .     751 
California,  North  Dakota,  South  Dakota, 

and  Idaho • .     752 

as  affecting  accumulations,  limited  by  statute.    See  Ap- 
pendix B. 

by  the  Thellusson  Act 686-714 

in  Pennsylvania ^   715-725 


706  INDEX. 

RULE  AGAINST  PERPETUITIES  —  continued.  Section 

Alabama 726 

Indiana 727 

New  York 727 

See  PERPETUITY. 

SCHOOL, 

open  to  all  the  neighborhood,  gift  to,  may  be  a  charity    6S2 

SCHOOLMASTER, 

gift  to,  may  be  a  charity 681 

SCOTLAND, 

law  as  to  remoteness  in,  of  interests  in  land     .   .    .     753-756 

in  movables 757,  758 

as  to  accumulation 759,  760 

entails  in 753,  754,  756 

Thellusson  Act  extends  to  movables  in 714 

now,  though  not  formerly,  to  heritable  property     .     714 
See  CONFLICT  OF  LAWS;  HERITABLE  BONDS. 

SEPARABLE  LIMITATIONS.    Chap.  IX. 

limitation  expressed  as  single  cannot  be  separated  .  331-337 
exception  when  contingent  remainder  in  one  alter- 
native and  conditional  limitation  in  another  338-340  c 
when  separated  by  testator  or  settlor,  treated  as 

separable 341-354  a 

to  a  class,  when  separable    ....     355,  389-395,  441 
of  personal  property  on  failure  of  issue,  when  sep- 
arable       356-362 

same  rules  as  in  direct  limitations  applied  to  powers  479,  480 

to  appointments 537-540 

See  CLASS;  SERIES. 
SERIES, 

limitation  to,  the  first  member  of,  may  take,  though  the 
rest  cannot.    Chap.  XI. 

SHARE, 

in  stock  of  corporation,  transfer  of,  whether  subject  to 
Rule  against  Perpetuities 329,  n. 

SHELLEY'S  CASE,  RULE  IN, 

how  far  it  affects  gifts  of  personal  property 647,  n. 

SHIFTING  USE, 

defined .  54,  919 


INDEX.  707 

SHIFTING  USE  —  continued.  Section 

not  vested  interest .,   .     114 

first  introduced 137 

See  CONDITIONAL  LIMITATION. 

SINKING  FUND, 

how  far  within  Rule  against  Perpetuities      571  a 

SLAVE, 

present  gift  of,  whether  too  remote 228 

provisions  for  emancipation  of,  held  never  too  remote  in 

Virginia 228,  n. 

otherwise  in  Kentucky  . 228,  n. 

SOUTH  CAROLINA, 

fee  simple  conditional  in 14,  n.,  38 

possibility  of  reverter  after 14,  n.,  38 

executory  devise,  cutting  short,  whether  good  14,  n.,  455 

no  estates  tail  in 19,  n. 

tenure  in     23 

Statute  Quid  Emptores  not  in  force  in 27 

SOUTH  DAKOTA, 

statutes  as  to  remoteness  and  accumulation 752 

SPENDTHRIFT  TRUST, 

whether   accumulation    under,    violates   Pennsylvania 

statute 720-7226 

See  ACCUMULATION;  ALIENATION;  DISCRETIONARY  POWER; 
POSTPONEMENT  OF  ENJOYMENT. 

SPRINGING  USE, 

defined 54,  919 

not  vested  interest 114 

first  introduced 136 

after  term  for  years,  not  to  be  construed  bad  contingent 

remainder 58-60 

See  CONDITIONAL  LIMITATION. 

STATUTE  DE  DONIS.    See  TAIL,  ESTATE  IN. 

STATUTE  OF  ENROLMENTS, 

whether  in  force  in  America 67,  n. 

STATUTE  OF  QUIA  EMPTORES, 20-51 

inapplicable  where  no  tenure 24 

till  tenure  abolished,  in  force  in  New  York 24,  n. 


708  INDEX. 

STATUTE  OF  QUIA  EMPTORES  —  continued.  Section 

in  Virginia 24,  n. 

where  tenure,  in  force  in  America 25,  26  a,  28 

except  Pennsylvania 26 

and  South  Carolina 27 

no  effect  on  remainders  and  reversions 29 

except  that  when  remainder  in  fee  is  granted, 

all  remainders  are  held  of  chief  lord  ....       29 
nor  on  rights  of  entry  for  breach  of  conditions    .     30,  31 

nor  on  base  fees 35,  n. 

did  away  with  possibilities  of  reverter  .    .    .    31-41,  774-782 

effect  on  escheat 44 

after  dissolution  of  corporation 44-51 

erroneous  opinion  on 44-51 

since,  no  contingent  termination  of  fee,  except  condition 
and  conditional  limitation 250 

STATUTE  OF  USES, 52-66,919 

freeholds  in  futuro  raised  by 52 

supposed  exceptions 55-65 

not  in  force  in  Ohio 68 

nor  in  some  others  of  the  United  States 67 

does  not  apply  to  copyholds 70 

nor  to  chattels  real 73 

but  terms  may  be  raised  out  of  a  freehold  by 

the  statute 73,  n. 

nor  to  chattels  personal 79 

contingent  remainders  limited  by 54 

held  destructible 141 

whether  on  a  conveyance  to  the  use  of  the  grantee  for 

life  the  use  is  executed  by 930,  n. 

See  BARGAIN  AND  SALE;   CONDITIONAL  LIMITATION; 
COVENANT;  SHIFTING  USE;  SPRINGING  USE. 

STATUTE  OF  WILLS 53 

See  CONDITIONAL  LIMITATION;  EXECUTORY  DEVISE. 

STATUTES, 

as  to  accumulation,  in  England,  Thellusson  Act      .     686-714 

in  America 715-727 

as  to  remoteness  in  America.    Appendix  C. 

SUBSEQUENT  INTEREST, 

effect  on,  of  remote  limitations 251-258 


INDEX.  709 

SUBSTITUTION,  Section 

in  Scotland 757,  753 

in  Roman  Law 762 

in  France 765 

prohibited  in  Louisiana 768-772 

in  Texas 773 

SUBSTITUTIONARY  GIFT, 

failing  as  remote,  may  leave  original  gift  good    .    .    386,  388 

SUSPENSION  OF  ALIENATION.    See  ALIENATION. 

TAIL,  ESTATE  IN, 

created  by  Statute  De  Donis 18 

became  destructible 19 

introduced  into  America,  but  generally  done  away  with  19,  n. 
statute  abolishing  held  to  create  determinable  fee  .    .     42,  n. 

constitutional  provisions  as  to 731,  733 

in  some  copyholds 70 

remainder  after,  vested , Ill 

condition  not  to  dock,  void 140 

quasi,  in  estate  pur  auter  vie,  whether  tenant  can  bar  re- 
mainders      227,  n. 

personal  property  given  by  words  appropriate  to  settle- 
ment of  land  in  tail  356-362 

given  like  realty  settled  in  tail,  what  interest  is  taken 

363-367 
when  absolute  interest  given  in,  by  words  which 

would  give  estate  tail  in  realty 647,  n. 

limitations  after,  when  remote.    Chap.  XIV. 

which  must  vest,  if  at  all,  not  later  than  end  of 

estate  tail,  good 443 

though  tenant  in  tail  a  minor 444 

unless  estate  tail  itself  too  remote 445 

which  may  vest  after  end  of  estate  tail,  too  remote  446, 

450-453 

remainder  after,  good 447 

(so  called)  after  equitable,  may  be  too  remote     .    .     451 

term  for  years  after,  good 448 

conditional  limitation  cutting  short,  good 449 

unless  it  may  take  effect  after  end  of  estate  tail  450, 453 

not  partly  good  and  partly  bad 453 

grant  of  reversion  after,  may  be  too  remote 452 


710  INDEX. 

TAIL,  ESTATE  IN  —  cmtinued.  Section 
trust  terms  preceding,  remoteness  of,  questionable  doc- 
trine in  England 456-172,  505 

powers  in  connection  with 487-509 

created  cy  pres.    See  CY  PRES 643-670 

where  abolished,  doctrine  of  cy  pres  inapplicable     .    663,  665, 

668,  669 
direction  that  successive  tenants  in  tail  shall  hold  only 

for  life,  void 656 

entails  in  Scotland 753,  754,  756 

"TENEMENT," 

often  extended  to  include  incorporeal  hereditaments  .     43,  n. 

TENNESSEE, 

estates  tail  in     19,  n. 

Statute  Quia  Emptores  in 25 

local  doctrine  in,  as  to  remainder  to  a  class     .    .    .    .   110,  n. 

constitutional  provision  as  to  perpetuities 730 

does  not  refer  to  charities 731 

See  CHARITY;  CY  PRES. 

TENURE, 

how  far  it  exists  in  the  United  States 22,  23 

none,  of  rights  in  land  of  others      43 

TERM  FOR  TWENTY-ONE  YEARS.    See  STATUTE  OF 
QUIA  EMPTORES;  TWENTY-ONE  YEARS. 

TERM  FOR  YEARS.    See  YEARS,  ESTATE  FOR. 

TEXAS, 

constitutional  provision  as  to  remoteness     ....    730,  773 
provisions  of  law  as  to  remoteness  in 773 

THELLUSSON  ACT, 686-714 

given  at  length 686 

avoids  accumulations  in  excess  of  the  Act  only  ....     687 

applies  to  accumulation  by  implication 689-691 

accumulation  which  can  be  stopped  at  pleasure  not  within  692 

application  of,  to  policies  of  life  insurance 693 

not  a  rule  of  construction 694 

does  not  accelerate  enjoyment 694,  700 

periods  for  accumulation  allowed  by 695-699 

income  released  by,  where  it  goes 700-708 

as  between  life  tenant  and  remainder-man  .    .     707,  708 
cases  exempt  from 709-712 


INDEX.  711 

THELLUSSON  ACT  —  continued.  Section 

costs  under 713 

extends  to  Scotland,  as  to  movable  property   .    .    .     714,  760 
and  now,  though  not  formerly,  as  to  heritable 

property 714,  760 

except  as  to  deeds  before  its  extension  .    .     714 
and  accumulations  before  its  exten- 
sion   760 

to  Victoria 714 

to  Ontario 714 

not  to  Ireland 714 

conflict  of  laws  as  to 714,  n. 

act  similar  to,  in  Pennsylvania 715-725 

TIME, 

from  which  Rule  against  Perpetuity  runs  is  testator's 
death,  not  date  of  will 231 

See  POWER;  REASONABLE  TIME. 
TOMB, 

condition  to  keep  in  repair,  whether  remote    .    .     311,  311  a 

bequest  to  keep  in  repair,  whether  a  charity    .    .     311,  311  a 

Rule  against  Perpetuities  not  applicable  to  .    .     904-909 

TRUSTS, 

as  affected  by  Rule  against  Perpetuities.    Chap.  XII. 

to  sell 414  a 

See  CHARITY;  DEBTS,  PAYMENT  OF;  EQUITABLE  IN- 
TEREST; EXECUTORY  TRUST;  POWER;  RESULTING 
TRUST;  SPENDTHRIFT  TRUST;  TAIL,  ESTATE  IN; 
TRUSTEE. 

TRUSTEE, 

discretionary  power  of,  effect  on  remoteness    .    .    .    246,  439 

takes  only  estate  necessary  for  valid  trust 422  a 

power  to  appoint  new,  not  too  remote 509 

See  CHARITY;  DEBTS,  PAYMENT  OF;  EQUITABLE  INTER- 
EST; POWER;  SPENDTHRIFT  TRUST;  TAIL,  ESTATE  IN. 

TWENTY-ONE  YEARS, 

extension  of  Rule  against  Perpetuities  to  cover,  history 

of 176-185 

not  defensible  on  principle 186-188 

by  lay  lords  overruling  the  judges  ....    178,  186,  187 
may  be  taken  as  term  in  gross 223 


712  INDEX. 

UNITED  STATES.    See  AMERICA.  Section 

USE.    See  CONDITIONAL  LIMITATION  ;  SHIFTING  USE  ;  SPRING- 
ING USE;  STATUTE  OF  USES. 

USUFRUCT, 

in  Roman  law 761 

in  France 763,  764,  765,  n. 

in  Louisiana 766-768,  770-772 

VERMONT, 

constitutional  provision  as  to  entails 733 

VESTED  INTERESTS, 

in  real  estate 110,  n.,  794,  799,  801,  970-974 

remainders 100-112,  970-974 

reversions 113-113  b 

other  future  interests 114 

rights  by  escheat 115 

equitable  interests 116,  327  a 

arising  under  powers 476  b 

in  personal  property  .    86  a,  90,  117-117  b,  320,  817-820,  971 
secondary  meaning  of  "  transmissible  interests  "      ...     118 

of  "  inviolable  interests  " 112,  n.,  118,  n. 

not  within  Rule  against  Perpetuities  201,  205-210,  283,  320, 

322,  972-974 
except  in  certain  gifts  to  classes     ....     205  a,  972,  n. 

though  preceded  by  remote  limitations 251 

but  might  conceivably  be  otherwise  in  ideal  system 

of  law 972-974 

common  law  gives  an  artificial  importance  to  distinction 

between,  and  all  other  future  interests 970 

that  gift  is  residuary,  reason  for  holding  it  vested  .    .    .     641 

See  REMAINDER. 
VICTORIA, 

Thellusson  Act  in  force  in 714 

VIRGINIA, 

no  tenure  in 23 

statute  Quia  Emptores  originally  in  force  in 24,  n. 

provisions  for  emancipation  in,  held  not  within  Rule 

against  Perpetuities 228,  n. 

easement  cannot  be  created  by  custom  in    ....     585,  586 
See  CHARITY;  CY  PRES. 


INDEX.  713 

WARRANTY.    See  QUIET  ENJOYMENT.  Section 

WEST  VIRGINIA, 

no  tenure  in 23 

See  CHARITY;  CY  PRES. 

WHITBY  v.  MITCHELL,  RULE  IN.     See  REMAINDER; 
EQUITABLE  INTEREST;  EXECUTORY  DEVISE. 

WISCONSIN, 

no  tenure  in 23 

conflict  between  laws  in,  as  to  remoteness  of  limitations 

of  realty  and  personalty 265,  n.,  751,  916 

statutes  on  remoteness  and  accumulation 751 

See  CHARITY;  CY  PRES. 

YEARS,  ESTATE  FOR, 

rights  in 804-820 

can  begin  in  futuro 71 

underlease  or  assignment  of,  may  begin  in  futuro    ...       71 

condition  attached  to 72 

equitable  interest  in,  may  begin  in  futuro 75 

contingent  use  after,  is  good  springing  use  and  not  bad 

remainder       58-60 

Statute  of  Uses  does  not  apply  to .       73 

but  may  raise  term  out  of  freehold 73,  n. 

gift  of,  for  life  and  then  over,  inter  viws,  not  good  in 

England 71  b,  811 

probably  otherwise  in  America 71  b,  816 

gift  of,  to  one  and  his  heirs,  or  heirs  of  his  body,  passes 

whole  term      76 

executory  devise  of.     See  EXECUTORY  DEVISE. 
contingent  remainder  not  destroyed  by  granting  141,  n.,  146 
remainder  after,  vested  and  not  within  Rule  against  Per- 
petuities   8,  209,  210,  970,  n. 

though  term  may  have  contingent  termination  .  209,  210 
not  exceeding  twenty-one  years,  no  limitation  of,  too 

remote 225-230 

whether  rendered  void  for  remoteness  by  covenant  for 

renewal 230-230  a 

option  to  lessee  of,  to  purchase  fee,  within  the  Rule 

against  Perpetuities 230  b 

governed  by  lex  rei  sites 259 


714  INDEX. 

YEARS,  ESTATE  FOR  —  continued .  Section 

held  otherwise  in  New  York 259,  n. 

interesse  termini      320,  n. 

commencing  in  futuro 320,  n.,  971,  n. 

to  trustees  for  payment  of  debts 415 

on  expiration  of  estate  tail,  good 448 

to  trustees  preceding  estate  tail,  remoteness  of,  ques- 
tionable doctrine  in  England 456-472,  505 

successive  terms,  determinable  by  death,  do  not  give 

estate  tail  by  cy  pres 654 

in  Alabama,  allowed  for  twenty  years  only  ....     210,  742 
chattels  personal  may  be  bailed  for  years     ....      78,  825 
See  CONDITION,  RIGHT  TO  ENTER  FOB  BREACH  OF. 


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